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REPORT  OF  COMMISSION 

APPOINTED  BY 

GOVERNOR  M.  E.  HAY 

-TO— 

Investigate  the  Problems 

-OF- 

INDUSTRIAL  ACCIDENTS 

-AND  TO- 

DRAFT  A  BILL  ON  THE  SUBJECT 

_  OF  - 

Employes^  Compensation 


-  TO  BE 


Submitted  to  the  J9I  t  Session  of  the  '^     '  '^^^ 

Washington  Legislatwre  vnj^^ni.ii^ 


r>  v.; 


.,s^'' 


Paul  E.  Page,  Chairman;  F.  B.  Hubbahd,  James  Anderson, 
Peter  Henrbtty;  J.  H.  Wallace,  E,  S.  Jones,  J.  A.  Fal- 
coner, J.  P.  McGoLDKiCK,  Clarence  Parker,  George  Von 
EscHEN.  Harold  Preston,  Attorney  for  the  Commission. 


B.  L.  BOARiDMAN,  PUBLIC  PBINTEB 

OLYMPIA,  WASH. 

1910 


REPORT  OF  COMMISSION 


APPOINTED  BY 


GOVERNOR  M.  E.  HAY 


TO 


Investigate  the  Problems 


OF- 


INDUSTRIAL  ACCIDENTS 

—  AND  TO  — 

DRAFT   A  BILL  ON  THE  SUBJECT 

—  OP  — 

Employes^   Compensation 


■TO  BE 


Submitted  to  the  i9t\  Session  of  the 
Washing;ton  Legislature 


Paul  E.  Page,  Chairman;  F.  B.  Hubbard,  James  Anderson, 
Peter  Henretty,  J.  H.  Wallace,  E.  S.  Jones,  J.  A.  Fal- 
coner. J.  P.  McGoLDRicK,  Clarence  Parker,  George  Von 
Eschen.  Harold  Preston,  Attorney  for  the  Commission. 


E.  L.  BOARDMAN,  PUBLIC  PRINTER 

OLYMPIA,  WASH. 

IMO 


DOCUMENTS 

DEFT. 


TlEl^ORT. 


Tacoma,  Washington,  December  30,  1910. 
To  THE  Honorable  M.  E.  Hay,  Governor  of  Washington: 

The  employers'  liability  commission  appointed  by  you  to  investigate 
the  problems  of  industrial  accidents  and  draft  a  bill  upon  the  subject 
for  submission  to  the  legislature  at  its  next  session,  respectfully  report 
as  follows: 

The  commission  consists  of  the  following:  Employers,  Paul  E.  Page 
of  Buckley,  F.  B.  Hubbard  of  Centralia,  James  Anderson  of  Seattle,  J. 
A.  Falconer  of  Everett,  and  J.  P.  McGoldrick  of  Spokane;  employes,  P. 
Henretty  of  Cle  Elum,  E.  S.  Jones  of  Ellensburg,  Clarence  Parker  of 
Tacoma,  J.  H.  Wallace  of  Seattle,  and  George  Von  Eschen  of  Spokane. 

We  organized  at  the  city  of  Tacoma  on  the  29th  day  of  September, 
1910,  byelecting  Mr.  Page  chairman,  and  Mr.  Henretty  secretary,  and 
appointed  Mr.  Harold  Preston  of  Seattle  our  attorney.  We  have  had 
numerous  meetings  and  gathered  such  statistics  of  industrial  accidents 
as  were  available,  but  found  it  impossible  to  obtain  comprehensive  sta- 
tistics of  any  industry  in  the  state  except  that  of  coal  mining.  It  took 
us  little  time,  however,  to  reach  an  agreement  with  the  Illinois  commis- 
sion, that  the  present  system  of  law  in  relation  to  the  matter  is  "unjust, 
haphazard,  inadequate  and  wasteful,  the  cause  of  enormous  suffering, 
of  much  disrespect  for  law,  and  of  a  badly  distributed  burden  upon 
society";  and  with  the  New  York  commission,  that  "present  conditions 
as  to  employers'  liability  are  intolerable";  and  with  Governor  Hughes 
of  New  York,  that  "our  present  methods  are  wasteful  and  result  in  in- 
justice. *  *  *  As  a  result  the  workmen  do  not  receive  proper  compen- 
sation, and  employers  pay  large  amounts  that  do  not  reach  them"; 
and  with  President  Roosevelt,  in  urging  upon  Congress  the  adoption  of 
the  compensation  system  for  workmen  employed  by  the  government, 
that  "it  is  a  matter  of  humiliation  to  the  nation  that  there  should  not  be 
on  our  statute  books  provision  to  meet  and  partially  to  atone  for  cruel 
misfortune  when  it  comes  upon  a  man,  through  no  fault  of  his  own, 
while  faithfully  serving  the  public.  In  no  other  prominent  industrial 
country  in  the  world  could  such  gross  injustice  occur;  for  almost  all 
civilized  nations  have  enacted  legislation  embodying  the  complete  rec- 
ognition of  the  principle  which  places  the  entire  trade  risk  for  indus- 
trial accident  (excluding  of  course  accidents  due  to  the  wilful  mis- 
conduct of  the  employe)  on  the  industry  as  represented  by  the  em- 
ployer, which  in  this  case  is  the  government.  *  *  *  The  same  broad 
principle  which  should  apply  to  the  government  should  ultimately  be 


(i77149 


4 

made  applicable  to  all  private  employers.  Where  the  nation  has  the 
power  it  should  enact  laws  to  this  effect.  Where  the  states  alone  have 
the  power  they  should  enact  the  laws." 

The  principle  of  sure  compensation  to  the  injured  workman,  regard- 
less of  questions  of  negligence,  has  obtained  for  years  in  every  country 
of  continental  Europe.  It  has  there  given  complete  satisfaction  and 
proved  beneficial  to  employer  and  employe  alike,  and  has  removed 
one  of  the  chief  causes  of  friction  and  animosity  between  employer 
and  employe. 

When  first  enacted  in  Germany,  twenty-five  years  ago,  it  was  feared 
that  it  would  prove  a  handicap  to  the  employer  in  his  competition  with 
the  employers  of  other  countries.  The  remarkable  strides  made  by 
German  industry  since  that  time  has  proven  that  the  apprehension  was 
unfounded;  and  the  commission  are  of  the  opinion  that  the  industries  of 
Washington,  in  their  competition  with  like  industries  in  other  states 
and  countries,  will  be  benefited  rather  than  harmed  if  that  principle 
shall  be  adopted  into  the  legislation  of  Washington. 

The  subject  is  one  of  present  intense  interest  in  many  parts  of  the 
United  States.  Commissions  like  our  commission  have  been  consti- 
tuted in  Massachusetts,  New  York,  Illinois,  Minnesota  and  Wisconsin, 
and  some  of  them  are  still  at  work  upon  the  problem.  They  have  been 
hampered  in  their  work  by  provisions  of  their  constitutions  not  con- 
tained in  the  constitution  of  Washington,  in  which  respect  we  consider 
the  State  of  Washington  to  be  fortunate,  in  that  the  way  seems  open 
here  to  enact  into  law  the  true  principle  which  should  govern  the  rela- 
tions between  employers  and  employes  engaged  in  hazardous  occupa- 
tions. 

We  submit  herewith  a  proposed  bill  which  we  have  prepared,  and 
which  has  our  unanimous  approval.  Most  of  the  commissions  of  other 
states  have  found  it  necessary  from  a  legal  standpoint  to  leave  the 
applicability  of  the  act  to  the  option  of  the  workman;  that  is  to  say,  he 
is  at  liberty  to  take  under  the  act  or  to  reject  the  act  and  bring  his 
action  at  law  against  his  employer;  yet  they  all  agree  that  the  only 
justification  for  imposing  absolute  liability  upon  the  employer  in  all 
cases,  regardless  of  the  question  of  negligence,  is  to,  on  the  other 
hand,  take  away  from  the  employe  the  right  to  sue  at  law.  They  have 
devised  plans,  the  object  of  which  is  to  leave  the  option  in  theory  in 
the  hope  that  it  will  not  obtain  in  practice.  The  bill  herewith  sub- 
mitted withdraws  the  matter  from  the  domain  of  private  controversy 
and  from  the  jurisdiction  of  the  courts,  provides  funds  out  of  which 
every  workman  injured,  and  the  family  of  every  workman  killed  in 
the  course  of  industrial  employment,  receive  a  measure  of  compen'^a- 
tion,  regardless  of  the  question  who  was  to  blame  for  the  accident,  and 
provides  that  this  shall  be  the  workman's  sole  remedy,  and  the  contri- 
bution which  the  employer  makes  to  the  funds  his  sole  financial  respon- 
sibility. 

The  problem  of  extremest  difficulty  with  which  we  have  been  con- 
fronted has  been  the  fixing  of  the  rates  of  contribution.     Most   em- 


5 
\ 

plovers  in  the  state  today  procure  what  is  known  as  employers'  liability 
policies,  for  which  they  pay  a  certain  percentage  of  their  payroll,  and 
which  furnishes  them  the  agreement  of  the  insurer  to  indemnify  them 
against  all  demands  made  against  them  by  or  on  account  of  employes 
injured  in  their  establishments. 

It  is  reasonably  well  established  by  statistics  that  of  the  sums  of 
money  paid  by  the  employer  for  employers'  liability  insurance,  little,  if 
any,  in  excess  of  twenty  per  cent  thereof,  reaches  the  injured  employe 
or  his  family.  In  the  State  of  Washington  the  sum  paid  last  year  for 
such  insurance  was  over  six  hundred  thousand  dollars,  of  which  nearly 
five  hundred  thousand  dollars  was  absolutely  wasted.  Insurance  men 
agree  that  of  such  insurance  sixty  per  cent,  of  the  premiums  is  ex- 
pended in  expenses  of  solicitation,  office  expenses,  expenses  of  ad- 
justment and  profits  to  stockholders.  In  accident  insurance  it  is  esti- 
mated that  fifty  per  cent,  of  the  premiums  paid  is  consumed  in -the 
same  way. 

It  is  estimated  that  one  accident  out  of  eleven  is  prosecuted  in  the 
courts,  and  that  one  out  of  ten  prosecuted  is  successful.  The  expenses 
to  the  state  and  the  several  counties  of  the  state,  in  providing  the 
court  machinery  for  trying  out  these  contests  is  enormous.  In  its  lim- 
ited time  the  commission  has  not  been  able  to  ascertain  from  the 
court  records  the  precise  size  of  that  item  of  cost;  it  is  variously  esti- 
mated at  from  one  hundred  thousand  dollars  to  two  hundred  thousand 
dollars  per  year.  Whatever  the  amount,  it  is  all  waste  and  furnishes, 
in  the  opinion  of  the  commission,  ample  justification  for  the  provision 
in  the  proposed  bill,  that  the  state  appropriate  out  of  its  treasury 
one  hundred  and  fifty  thousand  dollars  to  defray  the  expenses  of  the 
department  for  the  first  sixteen  months  of  operation  under  the  act  if 
the  act  shall  be  passed  by  the  coming  legislature;  that  is  to  say,  from 
October  first  (the  date  on  which  it  is  proposed  the  act  shall  become 
operative  between  employer  and  employe)  and  the  time  fixed  by  law 
for  the  next  session  of  the  legislature. 

If  other  justification  for  such  an  appropriation  were  needed  from  a 
financial  standpoint,  it  is  only  necessary  to  consider  the  financial  bur- 
den from  which  the  counties  of  the  state  will  be  relieved  by  a  law 
which  will  provide  an  ensured  living  for  injured  workmen,  their  widows 
and  children,  thereby  avoiding  the  possibility  of  their  becoming  public 
charges  or  worse. 

The  Illinois  commission  in  its  investigation  discovered  that  in  three 
and  one-half  years  the  county  of  Cook  alone  cared  for  one  hundred  and 
forty-seven  such  families,  numbering  five  hundred  and  fifty-eight  indi^ 
viduals.  In  seventy-two  of  these  families  the  wage-earner  had  been 
killed;  in  seventy-five  merely  injured.  Of  the  entire  one  hundred  and 
forty-seven  families  only  forty-three  had  any  wage  income  whatever. 
The  forty-three  families  averaged  a  weekly  income  of  $6.88.  The  entire 
group  had  an  average  income  of  fifty  cents  per  week  for  each  person. 
Of  these  families  seventy-two  were  native  Americans.  The  Illinois 
commission  "found  painfully  instructive  the  stories  of  how  the  women 


6 

and  children  in  these  one  hundi'ed  and  forty-seven  families  met  the 
load  thus  thrust  upon  them." 

On  the  other  side  of  the  account  we  hear  frequently  of  large  verdicts 
being  rendered  in  favor  of  the  plaintiff  in  such  cases;  yet  investiga- 
tion has  proven  that  approximately  five  hundred  dollars  is  the  average 
compensation  received  under  the  existing  system  for  the  accidental 
death  of  an  industrial  workman.  When  substantial  recoveries  are  se- 
cured, they  are  secured  only  at  the  end  of  years  of  litigation.  The 
remedy  under  present  laws  is  truly  uncertain.  The  doctrine  of  Magna 
Charta  was  that  one  for  an  injury  to  his  person  should  have  a  sure, 
speedy  and  adequate  remedy  in  the  courts.  In  the  administration  of 
the  common  law  system  the  remedy  has  proven  uncertain,  inadequate 
and  anything  but  speedy.  Yet  it  is  said  that  the  common  law  has  be- 
come so  engrafted  into  the  institutions  of  the  states  of  America  as  to 
stand  in  the  way  of  the  introduction  of  the  workmen's  compensation 
system  under  which  the  workman's  remedy  will  be  certain,  speedy  and 
reasonably  adequate. 

Other  commissions  have  seemed  to  favor  the  placing  of  the  liability 
directly  upon  the  employer;  that  is  to  say,  they  favor  fixing  a  schedule 
of  compensation  to  injured  workmen  and  their  families,  and  providing 
that  in  each  case  each  employer  shall  pay  the  stated  sum  to  the  in- 
jured employe,  or,  in  case  of  his  death,  to  his  familiy,  and  It  is  ex- 
pected (in  fact  it  is  the  case  in  New  York,  where  an  optional  statute 
was  this  year  enacted)  that  the  employers  will  then  write  employers' 
liability  insurance  to  protect  them  in  such  cases,  and  thereby  distribute 
the  burden. 

This  plan  has  not  met  with  the  favor  of  your  commission  for  the 
reason  that  it  still  retains  the  elements  of  waste  and  litigation.  It 
seems  to  us  better,  for  both  employer  and  employe,  that  all  the  money 
that  the  employers  pay  out  on  account  of  such  cases  shall,  every  cent 
of  it,  go  to  the  injured  workman. 

In  adjusting  the  schedules  of  contribution  we  believe  that  we  have 
erred,  if  at  all,  on  the  side  of  safety;  in  other  words,  that  the  schedules 
of  premiums  fixed  in  the  proposed  act  will  carry  the  schedule  of  com- 
pensation fixed  therein,  and  probably  more.  If  the  act  shall  be 
adopted,  the  commission  will  keep  books  with  every  industry  and  every 
class  of  industry,  and,  after  sixteen  months  of  such  bookkeeping,  will  be 
able  to  determine  precisely  whether  any  industry  has  contributed  more 
or  less  than  was  required  for  its  accidents  during  that  year,  and  the 
proposed  act  provides  for  the  refund  of  sums  paid  in  excess.  So  that 
if  the  rates  named  in  the  bill  appear  high  to  any  employer  or  class  of 
employers,  they  should  remember  that  if  proved  too  high,  the  excess  is 
only  a  temporary  advancement  of  money.  By  means  of  such  book- 
keeping the  commission  will  also  be  able  to  inform  the  succeeding 
legislature  of  the  exact  cost  of  the  schedule  of  compensation  to  each 
Industry  and  class  of  industries.  By  that  means  any  inequalities  dis- 
covered in  the  laying  of  the  burden  of  contribution  will  be  corrected  for 
future  application,  and  that  with  increasing  accuracy  as  the  years  of 


operation  under  the  act  increase;  so  that,  while  some  employers  of  the 
state  may  feel  that  the  rate  of  premium  fixed  in  the  act  is  large  in 
their  cases,  yet  it  is  hoped  that  the  question  will  be  first  viewed  in  its 
humanitarian  aspect  and  from  the  standpoint  of  the  public  good,  and 
that  it  will  be  borne  in  mind  that  the  rates  named  in  the  proposed 
bill  may  be  changed  after  sixteen  months  of  operation  and  demonstra- 
tion, and  that,  in  the  first  instance,  employers  can  well  afford  to  pay 
a  rate  possibly  seeming  too  large,  in  view  of  the  fact  that  any  error  or 
inequality  will  be  so  soon  corrected,  since  by  doing  so  they  may  be 
able  to  obtain  the  enactment  of  the  proposed  legislation,  the  effect  of 
which  will  be,  not  only  to  relieve  them  of  the  load  of  litigation  and 
expense  which  they  are  now  carrying  in  that  connection,  and  secure 
to  their  workmen  and  the  families  of  their  workmen  sure  provision  in 
cases  of  accidents,  but  also  to  restore  between  employer  and  workman 
a  feeling  of  friendship  and  co-operation  which  is  certain  to  be  re- 
flected in  the  yearly  trial  balance. 

In  closing,  the  commission  wish  to  gratefully  acknowledeg  assistance 
rendered  them  by  numerous  citizens,  and  especially  Govnor  Teats  and 
Edwin  P.  Masterson  of  the  Tacoma  bar,  and  George  W.  Rourke  of  the 
Seattle  bar. 

The  legal  report  of  the  attorney  to  the  commission  is  submitted 
herewith. 

Respectfully, 

Paul  E.  Page, 

E.  S.  Jones, 

J.  A.  Falconer, 

J.  P.  McGOLDEICK, 

Clarence  Parker, 
Jas.  Anderson, 
Geo.  Von  Eschen, 

F.  B.  Htjbbard, 
Peter  Henretty, 
J.  H.  Wallace. 


COMPENSATION  FOR  INJURED  WORKMEN  EMPLOYED 
IN  THE  INDUSTRIES  OF  THE  STATE.     • 


An  Act  creating  the  Industrial  Insurance  Department,  making  an  ap- 
propriation for  its  administration,  providing  for  the  creation  and  dis- 
bursement of  funds  for  the  compensation  and  care  of  workmen  in- 
jured in  hazardous  employment,  providing  penalties  for  the  non-ob- 
servance of  regulations  for  the  prevention  of  such  injuries  and  for 
violations  of  its  provisions,  asserting  and  exercising  the  police 
power  in  such  cases,  and,  except  in  certain  specified  cases,  abolish- 
ing the  doctrine  of  negligence  as  a  ground  for  recovery  of  damages 
against  employers,  and  depriving  the  courts  of  jurisdiction  of  such 
controversies. 

Be  It  Enacted  by  the  Legislature  of  the  State  of  Washington: 

Section     1.     Declaratiori  of  Police  Power. 

The  common  law  system  governing  the  remedy  of  workman  against 
employer  for  injuries  received  in  hazardous  work  does  not  consist  with 
modern  industrial  conditions.  In  practice  it  proves  to  be  economically 
unwise  and  unfair.  Its  administration  has  produced  the  result  that  little 
of  the  cost  to  the  employer  has  reached  the  workman  and  that  little 
only  at  large  expense  to  the  public.  The  remedy  of  the  workman  has 
become  uncertain,  slow  and  inadequate.  Injuries  In  such  works, 
formerly  occasional,  have  become  frequent  and  inevitable.  The  wel- 
fare of  the  state  depends  upon  its  industries,  and  even  more  upon  the 
welfare  of  its  wage-workers.  The  State  of  Washington,  therefore,  exer- 
cising herein  its  police  and  sovereign  power,  declares  that  all  phases 
of  the  premises  are  withdrawn  from  private  controversy,  and  sure  and 
certain  relief  for  workmen,  injured  in  extra  hazardous  work,  and  their 
families  and  dependents  is  hereby  provided  regardless  of  questions  of 
fault  and  to  the  exclusion  of  every  other  remedy,  proceeding  or  com- 
pensation, except  as  otherwise  provided  in  this  act;  and  to  that  end 
all  civil  actions  and  civil  causes  of  action  for  such  personal  injuries 
and  all  jurisdiction  of  the  courts  of  the  state  over  such  causes  are 
hereby  abolished,  except  as  in  this  act  provided. 

Sec.     2.     Enumeration  of  Extra  Hazardous  Worlcs. 

There  is  hazard  in  all  employment,  but  certain  employments  have 
come  to  be,  and  to  be  recognized  as  being  inherently  and  constantly 
dangerous.  This  act  is  intended  to  apply  to  all  such  inherently  hazard- 
ous works  and  occupations,  and  it  is  the  purpose  to  embrace  all  of 
them,  which  are  within  the  legislative  jurisdiction  of  the  state,  in  the 
following  enumeration,  and  they  are  intended  to  be  embraced  within  the 
term  "extra  hazardous"  wherever  used  in  this  act,  to-wit: 

Factories,  mills  and  workshops  where  machinery  is  used;  printing, 
electrotyping,  photo-engraving  and  stereotyping  plants  where  machin- 
ery is  used,  foundries,  blast  furnaces,  mines,  wells,  gas  works,  water 
works,  reduction  works,  breweries,  elevators,  wharves,  docks,  dredges. 


9 

smelters,  powder  works,  laundries  operated  by  power,  quarries,  engin- 
eering works:  logging,  lumbering  and  shipbuilding  operations;  logging, 
street  and  interurban  railroads;  buildings  being  constructed,  repaired, 
moved  or  demolished;  telegraph,  telephone,  electric  light  or  power 
plants  or  lines,  steam  heating  or  power  plants,  steamboats,  tugs,  ferries, 
and  railroads.  If  there  be  or  arise  any  extra  hazardous  occupation  or 
work  other  than  those  hereinabove  enumerated,  it  shall  come  under 
this  act,  and  its  rate  of  contribution  to  the  accident  fund,  hereinafter 
established,  shall  be,  until  fixed  by  legislation,  determined  by  the  de- 
partment hereinafter  created,  upon  the  basis  of  the  relation  which  the 
risk  involved  bears  to  the  risks  classified  in  section  4. 

Sec.     3.     Definitions. 

In  the  sense  of  this  act  words  employed  mean  as  here  stated,  to-wit: 

Factories  mean  undertakings  in  w^hich  the  business  of  working 
at  commodities  is  carried  on  with  power-driven  machinery,  either  in 
manufacture,  repair  or  change,  and  shall  include  the  premises,  yard 
and  plant  of  the  concern. 

Workshop  means  any  plant,  yard,  premises,  room  or  place  wherein 
power-driven  machinery  is  employed  and  manual  labor  is  exercised 
by  way  of  trade  for  gain  or  otherwise  in  or  incidental  to  the  process  of 
making,  altering,  repairing,  printing,  or  ornamenting,  furnishing  or 
adapting  for  sale  or  otherwise  any  article  or  part  of  article,  machine 
or  thing,  over  which  premises,  room  or  place  the  employer  of  the  per- 
sons working  therein  has  the  right  of  access  or  control. 

Mill  means  any  plant,  premises,  room  or  place  where  machinf-ry  is 
used,  any  process  of  machinery,  changing,  alterating  or  repairing  any 
article  or  commodity  for  sale  or  otherwise,  together  with  the  yards 
and  premises  which  are  a  part  of  the  plant,  including  elevators,  ware- 
houses and  bunkers. 

Mine  means  any  mine  where  coal,  clay,  ore,  mineral,  gypsum  or 
rock  is  dug  or  mined  under  ground. 

Quarry  means  an  open  cut  from  which  coal  is  mined,  or  clay,  ore, 
mineral,  gypsum,  sand,  gravel  or  rock  is  cut  or  taken  for  manufacturing, 
building  or  construction  purposes. 

Engineering  woi'k  means  any  work  of  construction,  improvement  or 
alteration  or  repair  of  buildings,  structures,  streets,  highw^ays,  sewers, 
street  railways,  railroads,  logging  roads,  interurban  railroads,  harbor, 
dock,  canal;  electric,  steam  or  water  power  plants;  telegraph  and  tele- 
phone lines;  electric  light  or  power  lines,  and  includes  any  other 
works  for  the  construction,  alteration  or  repair  of  which  machinery 
driven  by  mechanical  power  is  used. 

Except  when  otherwise  expressly  stated.  Employer  means  any  per- 
son, body  of  persons,  corporate  or  otherwise,  and  the  legal  person  rep- 
resentatives of  a  deceased  employer,  all  while  engaged  in  this  state  in 
any  extra  hazardous  work. 

Workman  means  every  person  in  this  state  who,  after  September 
30,  1911,  is  engaged  in  the  emploj^ment  of  an  employer,  whether  by 


10 

way  of  manual  labor  or  otherwise,  and  whether  upon  the  laremises  or  at 
the  plant  or  he  being  in  the  course  of  his  employment  away  from  the 
plant  of  his  employer:  Provided,  however,  That  if  the  enjury  to  a  work- 
man occurring  away  from  the  plant  of  his  employer  is  due  to  the  neg- 
ligence or  wrong  of  another  not  in  the  same  employ,  the  injured  work- 
man, or,  if  death  result  from  the  injury,  his  widow,  children  or  de- 
pendents, as  the  case  may  be,  shall  elect  whether  to  take  under  this  act 
or  seek  a  remedy  against  such  other,  such  election  to  be  in  advance  of 
any  suit  under  this  section;  and  if  he  take  under  this  act,  the  cause  of 
action  against  such  other  shall  be  assigned  to  the  state  for  the  benefit 
of  the  accident  fund;  if  the  other  choice  is  made,  the  accident,  fund 
shall  contribute  only  the  deficiency,  if  any,  between  the  amount  of 
recovery  against  such  third  person  actually  collected,  and  the  compensa- 
tion provided  or  estimated  by  this  act  for  such  case.  Any  such  cause 
of  action  assigned  to  the  state  may  be  prosecuted,  or  compromised  by 
the  department,  in  its  discretion.  Any  compromise  by  the  workman  of 
any  such  suit,  which  would  leave  a  deficiency  to  be  made  good  out  of 
the  accident  fund,  may  be  made  only  with  the  written  approval  of 
the  department. 

Any  individual  employe  or  any  member  or  officer  of  any  corporate 
employer  who  shall  be  carried  upon  the  payroll  at  a  salary  or  wage 
not  less  than  the  average  salary  or  wage  named  in  such  payroll  and 
who  shall  be  injured,  shall  be  entitled  to  the  benefits  of  this  act  as 
and  under  the  same  circumstances  as  and  subject  to  the  same  obliga- 
tions as  a  workman. 

Dependent  means  any  of  the  following  named  relatives  of  a  work- 
man whose  death  results  from  an  injury  and  who  leaves  surviving  no 
widow,  widower  or  child  under  the  age  of  sixteen  years,  viz.:  invalid 
child  under  the  age  of  sixteen  years,  daughter  between  sixteen  and 
eighteen  years  of  age,  father,  mother,  grandfather,  grandmother,  step- 
father, step-mother,  grandson,  granddaughter,  step-son,  step-daughter, 
brother,  sister,  half-sister,  half-brother,  niece,  nephew,  who,  at  the 
time  of  the  accident,  are  dependent,  in  whole  or  in  part,  for  their  sup- 
port upon  the  earnings  of  the  workman.  Except  where  otherwise  pro- 
vided by  treaty,  aliens,  other  than  father  or  mother,  not  residing  within 
the  United  States  at  the  time  of  the  accident  are  not  included. 

Beneficiary  means  a  husband,  wife,  child  or  dependent  of  a  woi'kman 
in  whom  shall  vest  a  right  to  receive  payment  under  this  act. 

Invalid  means  one  who  is  physically  or  mentally  incapacitated  from 
earning. 

The  word  "child,"  as  used  in  this  act,  includes  a  posthumous  child, 
a  child  legally  adopted  prior  to  the  injury,  and  an  illegitimate  child 
legitimated  prior  to  the  injury. 

The  words  injury  or  injured,  as  used  in  this  act,  refer  only  to  an 
injury  resulting  from  some  fortuitous  event,  as  distinguished  from  the 
contraction  of  disease. 


11 

Sec.     4.     Schedules  of  Contribution. 

Insomuch  as  industry  should  bear  the  greater  proportion  of  the  bur- 
den of  the  cost  of  its  accidents,  each  employer  shall,  prior  to  January 
15th  of  each  year,  pay  into  the  state  treasury,  in  accordance  with  the 
following  schedule,  a  sum  equal  to  a  percentage  of  his  total 'payroll 
for  that  year,  to-wit.,  (the  same  being  deemed  the  most  accurate 
method  of  equitable  distribution  of  burden  in  proportion  to  relative 
hazard) : 

CONSTRUCTION   WORK. 

Tunnels  ;  bridgos  ;   trestles  ;  sub-aqueous  work  ;   canal  or  dock   excavation  ; 

fire  escapes  ;  sewers  ;  house  moving  ;   house  wrecking 065 

Iron,  or  steel  frame  structures  or  parts  of  structures 080 

Electric  light  or  power  plants  or  systems  ;  telegraph  or  telephone  systems  ; 

pile    driving  ;    steam    railroads 050 

Steeples,  towers  or  grain  elevators,  not  metal  framed  ;  dry  docks  without 
excavation  ;  jetties  ;  breakwaters  ;  chimneys  ;  marine  railways  ;  water- 
works or  systems  ;  electric  railways  with  rockwork  or  blasting ;  blast- 
ing ;    erecting   fire-proof   doors    or    shutters 050 

Steam  heating  plants;  tanks,  water  towers  or  windmills,  not  metal  frames      .040 

Shaft    sinking .  060 

Concrete  buildings  ;  freight  or  passenger  elevators  ;  fire-proofing  of  build- 
ings ;  galvanized  iron  or  tin  work ;  gas  works  or  systems ;  marble, 
stone    or    brick    work ;    road   making ;    roof   work ;    safe    moving ;    slate 

work  ;  outside  plumbing  work  ;  metal  smokestacks  or  chimneys 050 

Excavations  not  otherwise  specified  ;  blast  furnaces 040 

Street  or  other  grading ;  cable  or  electric  street  railways  without  blasting ; 

advertising  signs  ;  ornamental  metal  work  in  buildings 035 

Ship  or  boat  building  or  wrecking  with  scafColds  ;  floating  docks 045 

Carpenter  work  not  otherwise  specified 035 

Installation  of  steam  boilers  or  engines  ;  placing  wires  in  conduits ;  in- 
stalling dynamos  ;  putting  up  belts  for  machinery  ;  marble,  stone  or  tile 
setting,  inside  work  ;  mantle  setting :  metal  ceiling  work  ;  mill  or  ship 
wrighting ;  painting  of  buildings  or  structures ;  installation  of  auto- 
matic sprinklers  ;  ship  or  boat  rigging ;  concrete  laying  in  floors,  foun- 
dations or  street  paving ;  asphalt  laying ;  covering  steam  pipes  or  boil- 
ers ;  installation  of  machinery  not  otherwise  specified 030 

Drilling  wells ;  installing  electrical  apparatus  or  fire  alarm  systems  in 
buildings  ;  house  heating  or  ventilating  systems  ;  glass  setting ;  building 
hot  houses ;  lathing ;  paper  hanging ;  plastering ;  inside  plumbing ; 
wooden  stair  building 020 

OPERATION    (INCLUDING    REPAIR    WORK)    OF 

(All  combinations  of  material  take  the  higher  rate  when  not  otherwise  provided). 
Logging  railroads  ;  railroads  ;  dredges  ;   interurban  electric  railroads  using 

third  rail  system  ;  dry  or  floating  docks 050 

Electric  light  or  power  companies  ;  interurban  electric  railroads  not  using 

third   rail   system  ;   quarries 040 

Street  railway  companies,  all  employes  ;  telegraph  or  telephone  companies  ; 

stone    crushing ;    blast    furnaces ;    smelters ;    coal    mines ;    gas    works ; 

steamboats  ;   tugs  ;   ferries 030 

Mines  other  than  coal ;  steam  heating  or  power  companies 025 

Grain    elevators ;    laundries ;    waterworks ;    paper    or    pulp    mills ;    garbage 

works 020 


12 

FACTOIUES  USING  POWEK-DIUVEN  MACHINERY. 

Stamping  tin  or  metal 045 

Bridge  worlv  :  railroad  car  making:  cooporago  ;  logging  with  or  without  ma- 
chinery ;  sawmills  ;  shingle  mills  ;  staves  ;  veneer  ;  box  ;  lath  ;  packing 
cases  ;  sash,  door  or  blinds  ;  barrel ;  keg ;  pail ;  basket ;  tub  ;  wooden 
ware  *or  wood  fibre  ware ;  rolling  mills ;  making  steam  shovels  or 
dredges  ;  tanks  ;  water  towers  ;  asphalt ;  building  material  not  otherwise 
specified  ;  fertilizer  ;  cement ;  stone  with  or  without  machinery  ;  kindling 
wood ;  masts  and  spars  with  or  without  machinery  ;  canneries,  metal 
stamping   extra    025 

Excelsior  ;  iron,  steel,  copper,  zinc,  brass  or  lead  articles  or  wares  not  oth- 
erwise specified  ;   working  in  wood  not  otherwise  specified  ;   hardware  ; 

tile  :  brick  ;  terra  cotta  :  fire  clay  ;  pottery  :  earthi>n  ware  ;  porcelain  ware  ; 

peat  fuel    020 

Brew(M-ies  ;    bottling    works  :    Ijoiler    works  ;    foundries  ;    machine    shops   not 

otherwise  specified 020 

Cordage:  working  in  food  stuffs,  including  oils,  fruits  and  vegetables;  work- 
ing in  wool,  cloth,  leather,  paper,  broom,  brush,  rubber  or  textiles  not 
otherwise  specified 015 

Making  jewelry,  soap,  tallow,  lard,  grease,   condensed  milk 015 

Creameries;  printing;  electrotyping ;  photo-engi-aving ;  engraving;  litho- 
graphing     015 

MISCELLANEOUS    WORK. 

Stevedoring  :  longshoring 030 

Operating  stockyards,  with  or  without  railroad  entry;  packing  houses 025 

Wharf  operation ;  artificial  ice,  refrigerating  or  cold-storage  plants  ;  tan- 
neries ;  electricians  not  otherwise  specified 020 

Theater  stage  employes 015 

Pire  works  manufacturing 050 

Powder  works 100 

The  application  of  this  act  as  between  employers  and  workmen  shall 
date  from  and  including  the  first  day  of  October,  1911.  The  payment 
for  1911  shall  be  made  prior  to  the  day  last  named,  and  shall  be  pre- 
liminarily collected  upon  the  payroll  of  the  last  preceding  three  months 
of  operation.  At  the  end  of  each  year  an  adjustment  of  accounts  shall 
be  made  upon  the  basis  of  the  actual  payroll.  Any  shortage  shall  be 
made  good  on  or  before  February  first  following,  and  any  over-payment 
shall  be  refunded  out  of  the  accident  fund.  Every  employer  who  shall 
enter  into  business  at  any  intermediate  day  shall  make  his  payment 
for  the  initial  year  or  portion  thereof  before  commencing  operation; 
its  amount  shall  be  calculated  upon  his  estimated  payroll,  and  adjust- 
ment shall  be  made  on  or  before  February  first  of  the  following  year 
in  the  manner  above  provided.  It  shall  be  discretionary  with  the  de- 
partment to  permit  any  annual  payment  to  be  made  in  quarterly  in- 
stallments. 

The  fund  thereby  created  shall  be  termed  "Accident  Fund,"  which 
shall  be  devoted  exclusively  to  the  purpose  specified  for  it  in  this  act. 

In  that  the  intent  is  that  the  funds  created  under  this  section  shall 
ultimately  become  neither  more  nor  less  than  self-supporting,  exclusive 
of  the  expense  of  administration,  the  rates  in  this  section  named  are 
subject  to  future  adjustment  by  the  legislature,  and  the  classifications 
to  re-arrangement  following  any  relative  increase  or  decrease  of  hazard 
shown  bj'^  experience. 


13 

It  shall  be  unlawful  for  the  employer  to  deduct  or  obtain  any  part 
of  the  premiums  required  by  this  section  to  be  by  him  paid  from  the 
wages  or  earnings  of  his  workmen  or  any  of  them,  and  the  making  or 
attempt  to  make  any  such  deduction  shall  be  a  gross  misdemeanor. 
If,  after  this  act  shall  have  come  into  operation,  it  is  shown  by  exper- 
ience under  the  act  that,  because  of  poor  or  careless  management,  any 
establishment  or  w-ork  is  unduly  dangerous  in  comparison  with  other 
like  establishments  or  works,  the  department  may  advance  it  in  classi- 
fication of  risks  and  premium  rates  in  proportion  to  the  undue  hazard. 
In  accordance  with  the  same  principle,  any  such  increase  in  classifica- 
tion or  premium  rate  shall  be  subject  to  restoration  to  the  schedule 
rate.  Any  such  change  in  classification  of  risk  or  of  premium  rates, 
or  any  change  caused  by  change  in  the  class  of  work,  occurring  during 
the  year  shall,  at  the  time  of  the  annual  adjustment,  be  adjusted  by 
the  department  in  proportion  to  its  duration  in  accordance  with  the 
schedule  of  this  section.  If,  at  the  end  of  any  year,  it  shall  be  seen 
that  a  particular  class  of  industry  has  contributed  more  than  proved 
necessary  to  take  care  of  its  accidents,  the  excess  of  contribution  of 
that  class  of  industry  shall  be  forthwith  refunded  to  the  contributors 
in  proportion  to  the  excess  contribution  of  each.  If,  at  the  end  of  any 
year,  it  shall  be  seen  that  the  contribution  to  the  accident  fund  by  any 
class  of  industry  shall  be  less  than  the  drain  upon  the  fund  on  ac- 
count of  that  class,  the  deficiency  shall  be  made  good  to  the  fund  on 
the  first  day  of  February  of  the  following  year  by  the  employers  of  that 
class  in  proportion  to  their  respective  contribution  for  the  past  year. 

If  a  single  establishment  or  work  comprises  several  occupations 
listed  in  this  section  in  different  risk  classes,  the  premium  shall  be 
computed  according  to  the  payroll  of  each  occupation  if  clearly  sep- 
arable; otherwise  an  average  rate  of  premium  shall  be  charged  for  the 
entire  establishment,  taking  into  consideration  the  number  of  employes 
and  the  relative  hazards.  In  computing  the  pajToll  the  entire  compen- 
sation received  by  every  workman  shall  be  included,  whether  it  be  in 
the  form  of  salary,  wage,  piece  work,  overtime,  or  any  allowance  in  the 
way  of  profit  sharing,  premium  or  otherwise,  and  w^hether  payable  in 
money,  board,  or  otherwise. 

Sec.     5.     Schedule  of  Awards. 

Each  workman  who  shall  be  injured,  whether  upon  the  premises  or 
at  the  plant  or,  he  being  in  the  course  of  his  employment,  away  from 
the  plant  of  his  employer,  or  his  family  or  dependents  in  case  of  death 
of  the  workman,  shall  receive  out  of  the  accident  fund  compensation  in 
accordance  with  the  following  schedule,  and,  except  as  in  this  act  oth- 
erwise provided,  such  payments  shall  be  in  lieu  of  any  and  all  rights 
of  action  whatsoever  against  any  person  whomsoever. 

COMPENSATION  SCHEDULE, 
(a)    Where   death  results   from   the  injury  the   expenses   of  burial 
shall  be  paid  in  all  cases,  not  to  exceed  $75.00  in  any  case,  and 

(1)  If  the  workman  leaves  a  widow  or  invalid  widower,  a  monthly 


14 

payment  of  $20.00  shall  be  made  throughout  the  life  of  the  surviving 
spouse,  to  cease  at  the  end  of  the  month  in  which  remarriage  shall 
occur;  and  the  surviving  spouse  shall  also  receive  $5.00  per  month  for 
each  child  of  the  deceased  under  the  age  of  sixteen  years  at  the  time 
of  the  occurrence  of  the  injury  until  such  minor  child  shall  reach  the 
age  of  sixteen  years,  but  the  total  monthly  payment  under  this  para- 
graph (1)  of  subdivision  (a)  shall  not  exceed  $35.00.  Upon  remarriage 
of  a  widow  she  shall  receive,  once  and  for  all,  a  lump  sum  equal  to 
twelve  times  her  monthly  allowance,  viz.:  the  sum  of  $240.00,  but  the 
monthly  payment  for  the  child  or  children  shall  continue  as  before. 

(2)  If  the  workman  leaves  no  wife  or  husband,  but  child  or  children 
under  the  age  of  sixteen  years,  a  monthly  payment  of  $10.00  shall  be 
made  to  each  such  child  until  such  child  shall  reach  the  age  of  sixteen 
years,  but  the  total  monthly  payment  shall  not  exceed  $35.00,  and  any 
deficit  shall  be  deducted  proportionately  among  the  beneficiaries. 

(3)  If  the  workman  leaves  no  widow,  widower  or  child  under  the 
age  of  sixteen  years,  but  leaves  a  dependent  or  dependents,  a  monthly 
payment  shall  be  made  to  each  dependent  equal  to  fifty  per  cent,  of  the 
average  monthly  support  actually  received  by  such  dependent  from  the 
workman  during  the  twelve  months  next  preceding  the  occurrence  of 
the  injury,  but  the  total  payment  to  all  dependents  in  any  case  shall 
not  exceed  $20.00  per  month.  If  any  dependent  is  under  the  age  of 
sixteen  years  at  the  time  of  the  occurrence  of  the  injury,  the  payment 
to  such  dependent  shall  cease  when  such  dependent  shall  reach  the 
age  of  sixteen  years.  The  payment  to  any  dependent  shall  cease  if  and 
when,  under  the  same  circumstances,  the  necessity  creating  the  de- 
pendency would  have  ceased  if  the  injury  had  not  happened. 

If  the  workman  is  under  the  age  of  twenty-one  years  and  unmarried 
at  the  time  of  his  death,  the  parents  or  parent  of  the  workman  shall 
receive  $20.00  per  month  for  each  month  after  his  death  until  the 
time  at  which  he  would  have  arrived  at  the  age  of  twenty-one  years. 

(4)  In  the  event  a  surviving  spouse  receiving  monthly  payments 
shall  die,  leaving  a  child  or  children  under  the  age  of  sixteen  years,  the 
sum  he  or  she  shall  be  receiving  on  account  of  such  child  or  children 
shall  be  thereafter,  until  such  child  shall  arrive  at  the  age  of  sixteen 
years,  paid  to  the  child  increased  one  hundred  per  cent.,  but  the  total  to 
all  children  shall  not  exceed  the  sum  of  thirtj-five  dollars  per  month. 

(b)  Permanent  total  disability  means  the  loss  of  both  legs  or  both 
arms,  or  one  leg  and  one  arm,  total  loss  of  eyesight,  paralysis  or  other 
condition  permanently  incapacitating  the  workman  from  performing 
any  work  at  any  gainful  occupation. 

When  permanent  total  disability  results  from  the  injury  the  work- 
man shall  receive  monthly  during  the  period  of  such  disability: 

(1)  If  unmarried  at  the  time  of  the  injury,  the  sum  of  $20.00. 

(2)  If  the  workman  have  a  wife  or  invalid  husband,  but  no  child 
under  the  age  of  sixteen  years,  the  sum  of  $25.00.  If  the  husband  is 
not  an  invalid,  the  monthly  payment  of  $25.00  shall  be  reduced  to  $15.00. 

(3)  If  the  workman  have  a  wife  or  husband  and  a  child  or  children 


15 

undec  the  age  of  sixteen  years,  or,  being  a  widow  or  widower,  have  any 
such  cliild  or  children,  the  monthly  payment  provided  in  the  preceding 
paragraph  shall  be  increased  by  five  dollars  for  each  such  child  until 
such  child  arrive  at  the  age  of  sixteen  years,  but  the  total  monthly 
payment  shall  not  exceed  thirty-five  dollars. 

(c)  If  the  injured  workman  die  during  the  period  of  permanent  total 
disability,  whatever  the  cause  of  death,  leaving  a  widow,  invalid  wid- 
ovv^er  or  child  under  the  age  of  sixteen  years,  the  surviving  widow  or 
invalid  widower  shall  receive  twenty  dollars  per  month  until  death  or 
remarriage,  to  be  increased  five  dollars  per  month  for  each  child  under 
the  age  of  sixteen  years  until  such  child  shall  arrive  at  the  age  of  six- 
teen years;  but  if  such  child  is  or  shall  be  without  father  or  mother, 
such  child  shall  receive  ten  dollars  per  month  until  arriving  at  the  age 
of  sixteen  years.  The  total  combined  monthly  payment  under  this 
pai'agraph  shall  in  no  case  exceed  thirty-five  dollars.  Upon  remarriage 
the  payments  on  account  of  a  child  or  children  shall  continue  as  before 
to  the  child  or  children. 

(d)  When  the  total  disability  is  only  temporary,  the  schedule  of 
payment  contained  in  paragraphs  (1),  (2)  and  (3)  of  the  foregoing  sub- 
division (b)  shall  apply  so  long  as  the  total  disability  shall  continue, 
increased  50  per  cent,  for  the  first  six  months  of  such  continuance 
after  the  first  three  weeks,  but  in  no  case  shall  the  increase  operate 
to  make  the  monthly  payment  exceed  sixty  per  cent,  of  the  monthly 
wage  (the  daily  wage  multiplied  by  twenty-six)  the  workman  was  re- 
ceiving at  the  time  of  his  injury.  As  soon  as  recovery  is  so  complete 
that  the  present  earning  power  of  the  workman,  at  any  kind  of  work, 
is  restored  to  that  existing  at  the  time  of  the  occurrence  of  the  injury 
the  payments  shall  cease.  If  and  so  long  as  the  present  earning  power 
is  only  partially  restored  the  payments  shall  continue  in  the  proportion 
which  the  new  earning  power  shall  bear  to  the  old.  No  compensation 
shall  be  payable  out  of  the  accident  fund  unless  the  loss  of  earning 
power  shall  exceed  five  per  cent. 

(e)  For  every  case  of  injury  resulting  in  death  or  permanent  total 
disability  it  shall  be  the  duty  of  the  department  to  forthwith  notify  the 
state  treasurer,  and  he  shall  set  apart  out  of  the  accident  fund  a  sum 
of  money  for  the  case,  to,  be  known  as  the  estimated  lump  value  of  the 
monthly  payments  provided  for  it,  to  be  calculated  upon  the  theory  that 
a  monthly  payment  of  twenty  dollars,  to  a  person  thirty  years  of  age,  is 
equal  to  a  lump  sum  payment,  according  to  the  expectancy  of  life  as 
fixed  by  the  American  Mortality  Table,  of  four  thousand  dollars,  but 
the  total  in  no  case  to  exceed  the  sum  of  four  thousand  dollars.  The 
state  treasurer  shall  invest  said  sum  at  interest  in  the  class  of  se- 
curities provided  by  law  for  the  investment  of  the  permanent  school 
fund,  and  out  of  the  same  and  its  earnings  shall  be  paid  the  monthly 
installments  and  any  lump  sum  payment  then  or  thereafter  arranged 
for  the  case.  Any  deficiency  shall  be  made  good  out  of,  and  any  bal- 
ance or  overplus  shall  revert  to  the  accident  fund.  The  state  treasurer 
shall  keep  accurate  accounts  of  all  such  segregations  of  the  accident 


16 

fund,  and  may  borrow  from  the  main  fund  to  meet  monthly  payments 
]jending-  conversion  into  cash  of  any  security,  and  in  such  case  shall 
repay  such  temporary  loan  out  of  the  cash  realized  from  the  security. 

(f)  Permanent  partial  disability  means  the  loss  of  either  one  foot, 
one  leg,  one  hand,  one  arm,  one  eye,  one  or  more  fingers,  one  or  more 
toes,  any  dislocation  where  ligaments  are  severed,  or  any  other  partial 
Injury  known  in  surgery  to  be  permanent.  For  any  permanent  partial 
disability  resulting  from  an  injury  the  workman  shall  receive  compen- 
sation in  a  lump  sum  in  an  amount  equal  to  the  extent  of  the  injury, 
to  be  decided  in  the  first  instance  by  the  department,  but  not  in  any 
case  to  exceed  the  sum  of  $1,500.00.  The  loss  of  one  major  ai'm  at  oi* 
above  the  elbow  shall  be  deemed  the  maximum  permanent  partial  dis- 
ability. Compensation  for  any  other  permanent  partial  disability  shall 
be  in  the  proportion  which  the  extent  of  such  disability  shall  bear  to 
the  said  maximum.  If  the  injured  workman  be  under  the  age  of 
twenty-one  years  and  unmarried,  the  parents  or  parent  shall  also  re- 
ceive a  lump  sum  payment  equal  to  ten  per  cent,  of  the  amount 
awarded  the  minor  workman. 

(g)  All  payments  under  this  section  shall  be  over  and  above  the 
first  aid  payments  provided  in  section  10  of  this  act,  but  the  computa- 
tion of  the  monthly  payments  shall  commence  at  the  end  of  the  period 
of  three  weeks  covered  by  section  10. 

(h)  Should  a  further  accident  occur  to  a  workman  already  receiv- 
ing a  monthly  payment  under  this  section  for  a  temporary  disability,  or 
who  has  been  previously  the  recipient  of  a  lump  sum  payment  under 
this  act,  his  future  compensation  shall  be  adjusted  according  to  the 
other  provisions  of  this  section  and  with  regard  to  the  combined  effect 
of  his  injuries,  and  his  past  receipt  of  money  under  this  act. 

(i)  If  aggravation,  diminution,  or  termination  of  disability  takes 
place  or  be  discovered  after  the  rate  of  compensation  shall  have  been 
established  or  compensation  terminated  in  any  case  the  department 
may,  upon  the  application  of  the  beneficiary  or  upon  its  own  motion, 
re-adjust  for  future  application  the  rate  of  compensation  in  accord- 
ance with  the  rules  in  this  section  provided  for  the  same,  or  in  a 
proper  case  terminate  the  payments. 

(j)  A  husband  or  wife  divorced  or  living  in  a  state  of  abandonment 
of  an  injured  workman  at  the  time  of  the  injury  or  subsequently, 
shall  not  be  a  beneficiary  under  this  act. 

(k)  If  a  beneficiary  shall  reside  or  remove  out  of  the  state  the  de- 
partment may,  in  its  discretion,  convert  any  monthly  payments  pro- 
vided for  such  case  into  a  lump  sum  payment  (not  in  any  case  to  ex- 
ceed $4,000)  upon  the  theory,  according  to  the  expectancy  of  life  as 
fixed  by  the  American  Mortality  Table,  that  a  monthly  payment  of 
$20.00  to  a  person  thirty  years  of  age  is  worth  $4,000.00,  or,  with  the 
consent  of  the  beneficiary,  for  a  smaller  sum. 

(1)  Any  court  review  under  this  section  shall  be  initiated  in  the 
county  where  the  workman  resides  or  resided  at  the  time  of  the  in- 
jury, or  in  which  the  injury  occurred. 


17 

Sec.     6.     Intentional  Injury — f^tatiis  of  Minors. 

If  injury  or  death  results  to  a  workman  from  the  deliberate  inten- 
tion of  the  workman  himself  to  produce  such  injury  or  death,  neither 
the  workman  nor  the  widow,  widower,  child  or  dependent  of  the  work- 
man shall  receive  any  payment  whatsoever  out  of  the  accident  fund. 
If  injury  or  death  results  to  a  workman  from  the  deliberate  intention 
of  his  employer  to  produce  such  injury  or  death,  the  workman,  the 
widow,  widower,  child  or  dependent  of  the  workman  shall  have  the 
privilege  to  take  under  this  act  and  also  have  cause  of  action  against 
the  employer,  as  if  this  act  had  not  been  enacted,  for  any  excess  of 
damage  over  the  amount  received  or  receivable  under  this  act. 

A  minor  working  at  an  age  legally  permitted  under  the  laws  of 
this  state  shall  be  demed  sui  juris  for  the  purpose  of  this  act,  and  no 
other  person  shall  have  any  cause  of  action  or  right  to  compensation 
for  an  injury  to  such  minor  workman  except  as  expressly  provided  in 
this  act,  but  in  the  event  of  a  lump  sum  payment  becoming  due  under 
this  act  to  such  minor  workman,  the  management  of  the  sum  shall  be 
within  the  probate  jurisdiction  of  the  courts  the  same  as  other 
property  of  minors. 

Sec.     7.     Conversion  Into  Lump  Sum  Payment. 

In  case  of  death  or  permanent  total  disability  the  monthly  pay- 
ment provided  may  be  converted,  in  whole  or  in  part,  into  a  lump  sum 
payment  (not  in  any  case  to  exceed  $4,000),  on  the  theory,  according 
to  the  expectancy  of  life  as  fixed  by  the  American  Mortality  Table, 
that  a  monthly  payment  of  $20.00  to  a  person  thirty  years  of  age  is 
worth  the  sum  of  $4,000,  in  which  event  the  monthly  payments  shall 
cease,  in  whole  or  in  part  accordingly  or  proportionately.  Such  con- 
\ersion  may  only  be  made  after  the  happening  of  the  injury  and  upon 
the  written  application  of  the  beneficiary  (in  case  of  minor  children, 
the  application  may  be  by  either  parent)  to  the  department,  and  shall 
rest  in  the  discretion  of  the  department.  Within  the  rule  aforesaid 
the  amount  and  value  of  the  lump  sum  payment  may  be  agreed  upon 
between  the  department  and  the  beneficiary. 

Sec.     8.     Defaulting  Employers. 

If  any  employer  shall  default  in  any  payment  to  the  accident  fund 
hereinbefore  in  this  act  required,  the  sum  due  shall  be  collected  by 
action  at  law  in  the  name  of  the  state  as  plaintiff,  and  such  right  of 
action  shall  be  in  addition  to  any  other  right  of  action  or  remedy.  In 
respect  to  any  injury  happening  to  any  of  his  workmen  during  the 
period  of  any  default  in  the  payment  of  any  premium  under  section  4, 
the  defaulting  employer  shall  not,  if  such  default  be  after  demand 
for  payment,  be  entitled  to  the  benefits  of  this  act,  but  shall  be  liable 
to  suit  by  the  injured  workman  (or  the  husband,  wife,  child  or  de- 
pendent of  such  workman  in  case  death  results  from  the  accident), 
as  he  would  have  been  prior  to  the  passage  of  this  act. 

In  case  the  recovery  actually  collected  in  such  suit  shall  equal  or 
exceed  the  compensation  to  which  the  plaintiff  therein  would  be  en- 


18 

titled  under  this  act,  the  plaintiff  shall  not  be  paid  anything  out  of 
the  accident  fund;  if  the  said  amount  shall  be  less  than  such  compen- 
sation under  this  act,  the  accident  fund  shall  contribute  the  amount 
of  the  deficiency.  The  person  so  entitled  under  the  provisions  of  this 
section  to  sue  shall  have  the  choice  (to  be  exercised  before  suit)  of 
proceeding  by  suit  or  taking  under  this  act.  If  such  person  shall 
take  under  this  act,  the  cause  of  action  against  the  employer  shall  be 
assigned  to  the  state  for  the  benefit  of  the  accident  fund.  In  any  suit 
brought  upon  such  cause  of  action  the  defenses  of  fellow  servant  and 
assumption  of  risk  shall  be  inadmissible,  and  the  doctrine  of  compar- 
ative negligence  shall  obtain.  Any  such  cause  of  action  assigned  to 
the  state  may  be  prosecuted  or  compromised  by  the  department  in  its 
discretion.  Any  compromise  by  the  workman  of  any  such  suit,  which 
would  leave  a  deficiency  to  be  made  good  out  of  the  accident  fund, 
may  be  made  only  with  the  written  approval  of  the  department. 

Sec.     9.     Employers'   ResponsiMlity   for   Safeguards. 

If  any  workman  should  be  injured  because  of  the  absence  of  any 
safeguard  or  protection  required  to  be  provided  or  maintained  by,  or 
pursuant  to,  any  statute  or  ordinance,  or  any  departmental  regulation 
under  any  statute,  or  be,  at  the  time  of  the  injury,  of  less  than  the 
minimum  age  prescribed  by  law  for  the  employment  of  a  minor  in 
the  occupation  in  which  he  shall  be  engaged  when  injured,  the  em- 
ployer shall,  within  ten  days  after  demand  therefor  by  the  depart- 
ment, pay  into  the  accident  fund,  in  addition  to  the  sums  required  by 
section  4  to  be  paid: 

(a)  In  case  the  consequent  payment  to  the  workman  out  of  the 
accident  fund  be  a  lump  sum,  a  sum  equal  to  50  per  cent,  of  that 
amount. 

(b)  In  case  the  consequent  payment  to  the  workman  be  payable  in 
monthly  payments,  a  sum  equal  to  50  per  cent,  of  the  lump  value  of 
such  monthly  payment,  estimated  in  accordance  with  the  rule  stated 
in  section  7. 

The  foregoing  provisions  of  this  act  shall  not  apply  to  the  em- 
ployer if  the  absence  of  such  guard  or  protection  be  due  to  the  re- 
moval thereof  by  the  injured  workman  himself  or  with  his  knowledge 
by  any  of  his  fellow  workmen,  unless  such  removal  be  by  order  or 
direction  of  the  employer  or  the  superintendent  or  foreman  of  the 
employer,  or  any  one  placed  by  the  employer  in  control  or  direction 
of  such  workman.  If  the  removal  of  such  guard  or  protection  be  by 
the  workman  himself  or  with  his  consent  by  any  of  his  fellow  work- 
men, unless  done  by  order  or  direction  of  the  employer  or  the  super- 
intendent or  foreman  of  the  employer,  or  any  one  placed  by  the  em- 
ployer in  control  or  direction  of  such  workman,  the  schedule  of  com- 
pensation provided  in  section  5  shall  be  reduced  10  per  cent,  for  the 
individual  case  of  such  workman. 

Sec.     10.     Creation  of  First  Aid  Fund. 

A  fund  is  hereby  created  in  the  state  treasury  to  be  known  as  the 
First  Aid  Fund.     Into  it  shall  be  paid  by  each  employer,  on  or  before 


19 

the  fifteenth  day  of  November,  1911,  and  each  month  thereafter,  the 
sum  of  four  cents  for  each  day's  work  or  fraction  thereof  done  by  each 
workman  for  him  during  the  preceding  calendar  month  or  part  there- 
of. Two  cents  of  such  four  cents  shall  be  deducted  by  the  employer 
from  the  pay  of  the  workman. 

Sec.     11.    Disbursements  of  First  Aid  Fund. 

Upon  the  occurrence  of  any  injury  to  a  workman,  he  shall  receive 
from  the  First  Aid  Fund  proper  and  necessary  medical,  surgical  and 
hospital  services  and  compensation  for  the  period  of  temporary  or 
other  disability  in  the  sum  of  five  dollars  per  week,  for  not  to  exceed 
three  weeks,  payable  at  the  end  of  each  week.  It  shall  be  the  duty  of 
the  employer  to  see  to  it  that  immediate  medical  and  surgical  services 
are  rendered,  and  transportation  to  hospital  provided,  and  all  charges 
therefor  shall  be  audited  and  paid  and  be  payable  only  by  the  depart- 
ment out  of  the  First  Aid  Fund. 

Sec.     12.     Exemption  of  Awards. 

No  money  paid  or  payable  under  this  act  out  of  the  accident  or 
First  Aid  Funds  shall,  prior  to  issuance  and  delivery  of  warrant 
therefor,  be  capable  of  being  assigned,  charged,  nor  even  be  taken  in 
execution  or  attached  or  garnisheed,  nor  shall  the  same  pass  to  any 
person  by  operation  of  law.  Any  such  assignment  or  charge  shall  be 
void. 

Sec.     13.    Nonicaiver  of  Act  by  Contract. 

No  employer  or  workman  shall  exempt  himself  from  the  burdens  or 
waive  the  benefits  of  this  act  by  any  contract,  agreement,  rule  or  reg- 
ulation, and  any  such  contract,  agreement,  rule  or  regulation  shall  be 
■pro  tanto  void. 

Sec.     14.    Filing  Claim  for  Compensation. 

(a)  Where  a  workman  is  entitled  to  compensation  under  this  act 
he  shall  file  with  the  department,  his  application  for  such,  together 
with  the  certificate  of  the  physician  who  attended  him,  and  it  shall  be 
the  duty  of  the  physician  to  inform  the  injured  workman  of  his  rights 
under  this  act  and  to  lend  him  all  necessary  assistance  in  making  his 
application  for  compensation  and  such  proof  of  other  matters  as  re- 
quired by  the  rules  of  the  department  without  charge  to  the  workman. 

(b)  Where  death  results  from  injury  the  parties  entitled  to  com- 
pensation under  this  act,  or  some  one  in  their  behalf,  shall  make  ap- 
plication for  the  same  to  the  department,  which  application  must  be 
accompanied  with  proof  of  death  and  proof  of  relationship  showing 
the  parties  to  be  entitled  to  compensation  under  this  act,  certificates 
of  attending  physicians,  if  any,  and  such  other  proof  as  required  by  the 
rules  of  the  department. 

(c)  If  change  of  circumstances  warrant  an  increase  or  rearrange- 
ment of  compensation,  like  application  shall  be  made  therefor.  No 
increase  or  rearrangment  shall  be  operative  for  any  period  prior  to 
application  therefor. 


20 

(d)  No  application  sliall  be  valid  oi'  claim  thereunder  enforcible  un- 
less filed  within  one  year  after  the  day  upon  which  the  injury  occurred 
or  the  right  thereto  accrued. 

Sec.     15.     Medical  Examination. 

Any  workman  entitled  to  receive  compensation  under  this  act  is  re- 
quired, if  requested  by  the  department,  to  submit  himself  for  medical 
examination  at  a  time  and  from  time  to  time  at  a  place  reasonably 
convenient  for  the  workman  and  as  may  be  provided  by  the  rules  of 
the  department.  If  the  workman  refuses  to  submit  to  any  such  exam- 
ination, or  obstructs  the  same,  his  rights  to  monthly  payments  shall 
be  suspended  until  such  examination  has  taken  place,  and  no  com- 
pensation shall  be  payable  during  or  for  account  of  such  period. 

Sec.     16.     Notice  of  Accident. 

Whenever  any  accident  occurs  to  any  workman  it  shall  be  the 
duty  of  the  employer  to  at  once  report  such  accident  and  the  injury 
resulting  therefrom  to  the  department,  and  also  to  any  legal  represen- 
tative of  the  department.     Such  report  shall  state: 

1.  The  time,  cause  and  nature  of  the  accident  and  injuries,  and  the 
probable  duration  of  the  injury  resulting  therefrom. 

2.  Whether  the  accident  arose  out  of  or  in  the  course  of  the  in- 
jured person's  employment. 

3.  Any  other  matters  the  rules  and  regulations  of  the  department 
may  prescribe. 

Sec.     17.     Inspection  of  Employer's  Books. 

The  books,  records  and  payrolls  of  the  employer  pertinent  to  the 
administration  of  this  act  shall  always  be  open  to  inspection  by  the 
department  or  its  traveling  auditor,  agent  or  assistant,  for  the  purpose 
of  ascertaining  the  correctness  of  the  payroll,  the  men  employ'ed,  and 
such  other  information  as  may  be  necessary  for  the  department  and  its 
management  under  this  act.  Refusal  on  the  part  of  the  employer  to 
submit  said  books,  records  and  payrolls  for  such  inspection  to  any 
member  of  the  commission,  or  any  assistant  presenting  written  author- 
ity from  the  commission,  shall  subject  the  offending  employer  to  a 
penalty  of  one  hundred  dollars  for  each  offense,  to  be  collected  by  civil 
action  in  the  name  of  the  state  and  paid  into  the  accident  fund,  and 
the  individual  who  shall  personally  give  such  refusal  shall  be  guilty  of 
a  misdemeanor. 

Sec     18.     Penalty  for  Misrepresentation  as  to  Payroll. 

Any  employer  who  shall  misrepresent  to  the  department  the  amount 
of  payroll  upon  which  the  premium  under  this  act  is  based  shall  be 
liable  to  the  state  in  ten  times  the  amount  of  the  difference  in  premium 
paid  and  the  amount  the  employer  should  have  paid.  Any  employer 
who  shall  misrepresent  to  the  department  the  amount  of  contribution 
due  from  him  to  or  collected  by  him  for  the  First  Aid  Fund  shall  be 
liable  to  the  state  in  ten  times  the  amount  attempted  to  be  concealed 
or  withheld  by  such  misrepresentation.     The  liability  to  the  state  un- 


21 

der  this  section  sliall  be  enforced  in  a  civil  action  in  the  name  of  the 
state.  All  -snms  collected  under  this  section  shall  be  paid  into  the 
Accident  or  First  Aid  Fund  in  proportion  to  the  interest  of  each  or 
either  therein. 

Sec.     19.     Emergency  Division  of  Expense  of  Administration. 

The  burden  of  the  cost  of  salaries,  traveling  and  office  expenses  in- 
cident to  the  administration  of  this  act  shall  (except  as  otherwise 
provided  for)  be  distributed  to  the  funds  as  follows:  to  the  accident 
fund,  15  per  cent,  thereof;   to  the  First  Aid  Fund,  85  per  cent,  thereof. 

Sec.     20.     Puhlic  and  Contract  Wo7-k. 

Whenever  the  state,  county  or  municipal  corporation  shall  en- 
gage in  any  extra  hazardous  work  in  which  the  workmen  are  em- 
ployed for  wages,  this  act  shall  be  applicable  thereto.  The  employer's 
payments  into  the  accident  and  first  aid  funds  shall  be  made  from 
the  treasury  of  the  state,  county  or  municipality.  If  said  work  is 
being  done  by  contract,  the  payroll  of  the  contractor  and  sub-contractor 
shall  be  the  basis  of  computation,  and  in  the  case  of  contract  work 
consuming  less  than  one  year  in  performance  the  required  payment 
into  the  accident  fund  shall  be  based  upon  the  total  payroll.  The  con- 
tractor and  any  sub-contractor  shall  be  subject  to  the  provisions  of 
the  act,  and  the  state  for  its  general  fund;  the  county  or  municipal 
corporation  shall  be  entitled  to  collect  from  the  contractor  the  full 
amount  payable  to  the  First  Aid  and  Accident  funds,  and  the  con- 
tractor in  turn  shall  be  entitled  to  collect  from  the  sub-contractor  his 
proportionate  amount  of  the  payment.  The  provisions  of  this  section 
shall  apply  to  all  extra  hazardous  work  done  by  contract,  except  that 
in  private  work  the  contractor  shall  be  responsible,  primarily  and  di- 
rectly, to  the  accident  fund  for  the  proper  percentage  of  the  total  pay- 
roll of  the  work  and  to  the  first  aid  fund  for  the  amounts  due  it,  and 
the  owner  of  the  property  affected  by  the  contract  shall  be  surety  for 
such  payments.  Whenever  and  so  long  as,  by  state  law,  city  charter 
or  municipal  ordinance,  provision  is  made  for  municipal  employes  in- 
jured in  the  course  of  employment,  such  employes  shall  not  be  entitled 
to  the  benefits  of -this  act  and  shall  not  be  included  in  the  payroll  of 
the  municipality  under  this  act. 

Sec.     21.    Interstate  Commerce. 

The  provisions  of  this  act  shall  apply  to  employers  and  workmen 
engaged  in  intrastate  and  also  interstate  or  foreign  commerce,  for 
whom  a  rule  of  liability  or  method  of  compensation  has  been  or  may 
be  established  by  the  Congress  of  the  United  States,  only  to  the  ex- 
tent that  their  mutual  connection  with  intrastate  work  may  and  shall 
be  clearly  separable  and  distinguishable  from  interstate  or  foreign 
commerce,  except  that  anj^  such  employer  and  any  of  his  workmen 
working  only  in  this  state  may,  with  the  approval  of  the  department, 
and  so  far  as  not  forbidden  by  any  act  of  Congress,  voluntarily  accept 
the  provisions  of  this  act  by  filing  written  acceptances  with  the  de- 
partment.    Such  acceptances,  when  filed  with  and  approved  by  the  de- 


22 

partment,  shall  subject  the  acceptors  irrevocably  to  the  provisions  of 
this  act  to  all  intents  and  purposes  as  if  they  had  been  originally  in- 
cluded in  its  terms.  Payment  of  premium  shall  be  on  the  basis  of  the 
payroll  of  the  workmen  who  accept  as  aforesaid. 

Sec.     22.      Elective   Adoption    of   Act. 

Any  employer  and  his  employes  engaged  in  works  not  extra  haz- 
ardous may,  by  their  joint  election,  filed  with  the  department,  accept 
the  provisions  of  this  act,  and  such  acceptance,  when  approved  by  the 
department,  shall  subject  them  irrevocably  to  the  provisions  of  this 
act  to  all  intents  and  purposes  as  if  they  had  been  originally  included 
in  its  terms.  Ninety  per  cent,  of  the  minimum  rate  specified  in  section 
4  shall  be  applicable  to  such  case  until  otherwise  provided  by  law. 

Sec.     23.     Court  Review. 

Any  employer,  workman,  beneficiary  or  person  feeling  aggrieved  at 
any  decision  of  the  department  affecting  his  interests  under  this  act 
may  have  the  same  reviewed  by  a  proceeding  for  that  purpose,  in  the 
nature  of  an  appeal,  initiated  in  the  Superior  Court  of  the  county  of 
his  residence  (except  as  otherwise  provided  in  subdivision  (1)  of  sec- 
tion numbered  5)  insofar  as  such  decision  rests  upon  questions  of  fact, 
or  of  the  proper  application  of  the  provisions  of  this  act,  it  being  the 
intent  that  matters  resting  in  the  discretion  of  the  department  shall 
not  be  subject  to  review.  The  proceedings  in  every  such  appeal  shall 
be  informal  and  summary,  but  full  opportunity  to  be  heard  shall  be  had 
before  judgment  pronounced.  No  such  appeal  shall  be  entertained 
unless  notice  of  appeal  shall  have  been  served  by  mail  or  personally 
upon  some  member  of  the  commission  within  twenty  days  following 
the  rendition  of  tlae  decision  appealed  from  and  communication  thereof 
to  the  person  affected  thereby.  No  bond  shall  be  required,  except 
that  an  appeal  by  the  employer  from  a  decision  of  the  department  uw 
der  section  9  shall  be  ineffectual  unless,  within  five  days  following  the 
service  of  notice  thereof,  a  bond,  with  surety  satisfactory  to  the  court, 
shall  be  filed,  conditioned  to  perform  the  judgment  of  the  court.  Ex- 
cept in  the  case  last  named  an  appeal  shall  not  be  a  stay.  The  calling 
of  a  jur'y  shall  rest  in  the  discretion  of  the  court  except  that  in  cases 
arising  under  sections  9,  17  and  18  either  party  shall  be  entitled  to  a 
jury  trial  upon  demand.  It  shall  be  unlawful  for  any  attorney  engaged 
in  any  such  appeal  to  charge  or  receive  any  fee  therein  in  excess  of  a 
reasonable  fee,  to  be  fixed  by  the  court  in  the  case,  and,  if  the  de- 
cision of  the  department  shall  be  reversed  or  modified,  such  fee  and 
the  fees  of  medical  and  other  witnesses  and  the  costs  shall  be  payable  as 
follows:  Out  of  the  administration  fund,  if  the  accident  fund  is  affected 
by  the  litigation,  out  of  the  first  aid  fund  if  it  is  the  fund  so  affected. 
In  other  respects  the  practice  in  civil  cases  shall  apply.  Appeal  shall 
lie  from  the  judgment  of  the  superior  court  as  in  other  civil  cases. 
The  attorney  general  shall  be  the  legal  adviser  of  the  department  and 
shall  represent  it  in  all  proceedings,  whenever  so  requested  by  any  of 
the  commissioners.     In  all  court  proceedings  under  or  pursuant  to  this 


23 

act  the  decision  of  the  department  shall  be  prima  facie  correct,  and 
the  burden  of  proof  shall  be  upon  the  party  attacking  the  same. 

Sec.     24.     Creation  of  Department. 

The  administration  of  this  act  is  imposed  upon  a  department,  to  be 
known  as  the  Industrial  Insurance  Department,  to  consist  of  three 
commissioners  to  be  appointed  by  the  governor,  one  of  whom  shall  be 
chosen  from  the  members  of  organized  labor.  One  of  them  shall  hold 
office  for  the  first  two  years,  another  for  the  first  four  years,  and  an- 
other for  the  first  six  years  following  the  passage  and  approval  of 
this  act.  Thereafter  the  term  shall  be  six  years.  Each  commissioner 
shall  hold  until  his  successor  shall  be  appointed  and  shall  have  quali- 
fied. A  decision  of  any  question  arising  under  this  act  concurred  in  by 
two  of  the  commissioners  shall  be  the  decision  of  the  department. 
The  governor  may  at  any  time  remove  any  commissioner  from  ofiice 
in  his  discretion,  but  within  ten  days  following  any  such  removal  the 
governor  shall  file  in  the  office  of  the  secretary  of  state  a  statement  of 
his  reasons  therefor.  The  commissioners  shall  select  one  of  their 
number  as  chairman.  The  main  office  of  the  commission  shall  be  at 
the  state  capitol,  but  branch  offices  may  be  established  at  other  places 
in  the  state.  Each  member  of  the  commission  shall  have  power  to 
issue  subpoenas  requiring  the  attendance  of  witnesses  and  the  pro- 
duction of  books  and  documents. 

Sec.     25.     Salary  of  Commissioners. 

The  salary  of  each  of  the  commissioners  shall  be  thirty-six  hundred 
dollars  per  annum,  and  he  shall  be  allowed  his  actual  and  necessary 
traveling  and  incidental  expenses;  and  any  assistant  to  the  commis- 
sioners shall  be  paid  for  each  full  day's  service  rendered  by  him  his 
a,ctual  and  necessary  traveling  expenses  and  such  compensation  as 
the  commissioners  may  deem  proper,  not  to  exceed  six  dollars  per  day 
to  an  auditor,  or  five  dollars  per  day  to  any  other  assistant. 

Sec.     26.    Deputies  and  Assista^its. 

The  commissioners  may  appoint  a  sufficient  number  of  auditors  and 
assistants  to  aid  them  in  the  administration  of  this  act,  at  an  expense 
not  to  exceed  $5,000.00  per  month.  They  may  employ  one  or  more 
physicians  in  each  county  for  the  purpose  of  official  medical  examina- 
tions, whose  compensation  shall  be  limited  to  five  dollars  for  each 
examination  and  report  therein.  They  may  procure  such  record  books 
as  they  may  deem  necessary  for  the  record  of  the  financial  transactions 
and  statistical  data  of  the  department,  and  the  necessary  documents, 
forms  and  blanks.  They  may  establish  and  require  all  employers  to 
install  and  maintain  an  uniform  form  of  payroll. 

Sec.     27.     Conduct,  Management  and  Supervision  of  Department. 
The  commission  shall,  in  accordance  with  the  provisions  of  this  act: 
1.     Establish   and   promulgate   rules   governing  the   administration 
of  this  act. 


M 

2.  Ascertain  and  establish  the  amounts  to  be  paid  into  and  out  of 
accident  and  first  aid  funds. 

3.  Regulate  the  proof  of  accident  and  extent  thereof,  the  proof  of 
death  and  the  proof  of  relationship  and  the  extent  of  dependency. 

4.  Supervise  the  medical,  surgical  and  hospital  treatment  accorded 
under  the  first  aid  provisions  of  this  act,  to  the  intent  that  same  may 
be  in  all  cases  suitable  and  wholesome. 

5.  Issue  proper  receipts  for  moneys  received,  and  certificates  for 
benefits  accrued  and  accruing. 

6.  Investigate  the  cause  of  all  serious  injuries  and  report  to  the 
governor  from  time  to  time  any  violations  or  laxity  in  performance  of 
protective  statutes  or  regulations  coming  under  the  observation  of  the 
department. 

7.  Compile  and  preserve  statistics  showing  the  number  of  acci- 
dents occurring  in  the  establishment  or  works  of  each  employer,  the 
liabilities  and  expenditures  of  the  accident  and  first  aid  funds  on  ac- 
count of,  and  the  premium  collected  from  the  same. 

8.  Make  annual  reports  to  the  governor  (one  of  them  not  more 
than  sixty  nor  less  than  thirty  days  prior  to  each  regular  session  of 
the  legislature)  of  the  workings  of  the  department,  and  showing  the 
financial  status  and  the  outstanding  obligations  of  the  accident  and 
first  aid  funds,  and  the  statistics  aforesaid. 

Sec.     28.     Medical  Witnesses. 

Upon  the  appeal  of  any  workman  from  any  decision  of  the  depart- 
ment affecting  the  extent  of  his  injuries  or  of  the  progress  qf.  the 
same,  the  court  may  appoint  not  to  exceed  three  physicians  to  ex- 
amine the  physical  condition  of  the  appellant,  who  shall  make  to  the 
court  their  report  thereon,  and  they  may  be  interrogated  before  the 
court  by  or  on  behalf  of  the  appellant  in  relation  to  the  same.  The  fee 
of  each  shall  be  fixed  by  the  court,  but  shall  not  exceed  ten  dollars  per 
day  each. 

Sec.     29.     Dishursevient  of  Funds. 

Disbursements  out  of  the  funds  shall  be  made  only  upon  warrants 
drawn  by  the  state  auditor  upon  vouchers  therefor  transmitted  to  him 
by  the  department  and  audited  by  him.  The  state  treasurer  shall  pay 
every  warrant  out  of  the  fund  upon  which  it  is  drawn.  If,  at  any 
time,  there  shall  not  be  sufficient  money  in  the  fund  on  which  any 
such  warrant  shall  have  been  drawn  wherewith  to  pay  the  same,  the 
employer  on  account  of  whose  workman  it  was  that  the  warrant  was 
drawn  shall  pay  the  same,  and  he  shall  be  credited  upon  his  next  fol- 
ioing  contribution  to  such  fund  the  amount  so  paid  with  interest 
thereon  at  the  legal  rate  from  the  date  of  such  payment  to  the  date 
such  next  following  contribution  became  payable,  and  if  the  amount  of 
the  credit  shall  exceed  the  amount  of  the  contribution,  he  shall  have 
a  warrant  upon  the  same  fund  for  the  excess,  and  if  any  such  warrant 
shall  not  be  so  paid,  it  shall  remain  nevertheless  payable  out  of  the 
fund.     The  state  treasurer  shall  to  such  extent  as  shall  appear  to  him 


25 

to  be  advisable  keep  the  moneys  of  the  first  aid  fund  and  the  un- 
segregated  portion  of  the  accident  fund  invested  at  interest  in  the 
class  of  securities  provided  by  law  for  the  investment  of  the  permanent 
school  fund.  The  state  treasurer  shall  be  liable  on  his  official  bond 
for  the  safe  custody  of  the  moneys  and  securities  of  the  first  aid  fund, 
but  all  the  provisions  of  an  act  approved  February  21,  1907,  entitled 
"An  act  to  provide  for  state  depositories  and  to  regulate  the  deposits  of 
state  moneys  therein"  shall  be  applied  to  said  moneys  and  the  handling 
thereof  by  the  state  treasurer. 

Sec.     30.     Test  of  Invalidity  of  Act. 

If  any  employer  shall  be  adjudicated  to  be  outside  of  the  lawful 
scope  of  this  act,  the  act  shall  not  apply  to  him  or  his  workmen,  or  if 
any  workman  shall  be  adjudicated  to  be  outside  the  lawful  scope  of 
this  act  because  of  remoteness  of  his  work  from  the  hazard  of  his  em- 
ployer's work,  any  such  adjudication  shall  not  impair  the  validity  of 
this  act  in  other  respects,  and  in  every  such  case  an  accounting  in  ac- 
cordance with  the  justice  of  the  case  shall  be  had  of  moneys  received. 
In  the  latter  case  no  payment  into  the  first  aid  fund  shall  be  required  in 
future  on  or  for  account  of  such  workman,  his  wages  shall  not  be  com- 
puted as  a  part  of  the  payroll  under  section  4.  and  he  shall  not,  nor 
shall  his  family  or  dependents  be  beneficiaries  of  either  the  accident  or 
first  aid  funds,  nor  shall  this  act  apply  to  him  or  them  in  other  re- 
spects. If  the  provisions  of  this  act  for  the  creation  of  the  first  aid 
fund  shall  be  adjudicated  to  be  invalid,  the  provisions  relating  to 
benefits  therefrom  and  disbursements  thereof  shall  thereupon  become 
invalid,  and  all  moneys  received  into  the  first  aid  fund  shall  be  dis- 
tributable according  to  the  justice  of  the  matter,  but  such  adjudica- 
tion shall  not  impair  the  validity  of  this  act  in  other  respects.  If 
the  provisions  of  section  4  of  this  act  for  the  creation  of  the  acci- 
dent fund,  or  the  provisions  of  this  act  making  the  compensation  to 
the  workmen  provided  in  it  exclusive  of  any  other  remedy  on  the 
part  of  the  workman  shall  be  held  invalid  the  entire  act  shall  be 
thereby  invalidated  except  the  provisions  of  section  31,  and  an  ac- 
counting according  to  the  justice  of  the  case  shall  be  had  of  moneys 
received.  In  other  respects  an  adjudication  of  invalidity  of  any  part 
of  this  act  shall  not  affect  the  validity  of  the  act  as  a  whole  or  any 
other  part  thereof. 

Sec.     31.     Statute  of  Limitations  Saved. 

If  the  provisions  of  this  act  relating  to  compensation  for  injuries 
to  or  death  of  workmen  become  invalid  because  of  any  adjudication, 
or  be  repealed,  the  period  intervening  between  the  occurrence  of  an 
injury  or  death  and  such  repeal  or  the  rendition  of  the  final  adjudica- 
tion of  invalidity  shall  not  be  computed  as  a  part  of  the  time  limited 
by  law  for  the  commencement  of  any  action  relating  to  such  injury 
or  death;  but  in  any  such  action  any  sum  paid  out  of  the  accident 
fund  and  one-half  of  any  sums  paid  out  of  the  first  aid  fund  to  the 
workman  on  account  of  injury  to  whom  the  action  is  prosecuted,  shall 


26 

be  taken  into  account  or  disposed  of  as  follows:  If  the  defendant  em- 
ployer shall  have  paid  without  delinquency  into  the  accident  fund 
the  payment  provided  by  section  4  and  into  the  first  aid  fund  his  share 
of  the  payments  provided  by  section  10,  such  sums  shall  be  credited 
upon  the  recovery  as  payment  thereon,  otherwise  the  sums  shall  not 
be  so  credited  but  shall  be  deducted  from  the  sum  collected  and  be 
paid  into  the  fund  from  which  they  had  been  previously  disbursed. 

Sec.     32.    Appropriations. 

There  is  hereby  appropriated  out  of  the  state  treasury  the  sum 
of  one  hundred  and  fifty  thousand  dollars,  or  so  much  thereof  as 
may  be  necessary,  to  be  known  as  the  administration  fund,  out  of 
which  the  salaries,  traveling  and  office  expenses  of  the  department 
shall  be  paid,  and  also  all  other  expenses  of  the  administration  of 
the  accident  fund;  and  there  is  hereby  appropriated  out  of  the  acci- 
dent fund  for  the  purpose  to  which  said  fund  is  applicable  the  sum  of 

I and  out  of  the  first  aid  fund  for  purposes  to  which  said  fund 

is  applicable  the  sum  of  $ ,  or  in  either  case  so  much  thereof 

as  shall  be  necessary  for  the  purposes  of  this  act. 

Sec.     33.     Safeguard  Regulations  Preserved. 

Nothing  in  this  act  contained  shall  repeal  any  existing  law  pro- 
viding for  the  installation  or  maintenance  of  any  device,  means  or 
method  for  the  prevention  of  accidents  in  extra  hazardous  work  or 
for  a  penalty  or  punishment  for  failure  to  install  or  maintain  any  such 
protective  device,  means  or  method,  but  sections  8,  9  and  10  of  the 
act  approved  March  6,  1905,  entitled:  "An  Act  providing  for  the 
protection  and  health  of  employes  in  factories,  mills  or  workshops, 
where  machinery  is  used,  and  providing  for  suits  to  recover  dam- 
ages sustained  by  the  violation  thereof,  and  prescribing  a  punishment 
for  the  violation  thereof  and  repealing  an  act  entitled  'An  Act  provid- 
ing for  the  protection  of  employes  in  factories,  mills  or  workshops 
where  machinery  is  used,  and  providing  for  the  punishment  of  the 
violation  thereof,'  approved  March  6,  1903,  and  repealing  all  other 
acts  or  parts  of  acts  in  conflict  herewith,"  are  hereby  repealed,  ex- 
cept as  to  any  cause  of  action  which  shall  have  accrued  thereunder 
prior   to   October  1,   1911. 

Sec.     34.     Distribution  of  Funds  in  Case  of  Repeal. 

If  this  act  shall  be  hereafter  repealed,  all  moneys  which  are  in 
the  accident  and  first  aid  funds  at  the  time  of  the  repeal  shall  be 
subject  to  such  disposition  as  may  be  provided  by  the  legislature, 
and  in  default  of  such  legislative  provision  distribution  thereof  shall  be 
in  accordance  with  the  justice  of  the  matter,  due  regard  being  had  to 
obligations  of  compensation  incurred  and  existing. 

Sec.     35.     Saving  Clause. 

This  act  shall  not  affect  any  contract  entered  into  before  its  passage 
and  existing,  or  any  action  pending  or  cause  of  action  existing  on  the 
30th  day  of  September,  1911. 


27 
ATTORNEY'S  REPORT. 


The  commission,  having  determined  to  report  to  the  governor  the 
foregoing  proposed  act  as  providing  the  most  desirable  method  of 
covering,  by  legislation,  the  entire  field  of  liability  for  industrial  acci- 
dents, has  requested  a  report  from  its  attorney  upon  the  constitution- 
ality of  the  proposed  act. 

The  proposed  act  is  the  first  complete  application  attempted  in  the 
United  States  of  the  principles  undei'lying  the  legislation  which, 
throughout  continental  Europe,  has  proved  successful,  satisfactory  and 
beneficial  to  all  interests.  By  its  express  terms  (section  1)  it  is  as- 
serted and  justified  from  a  legal  and  economical  standpoint  by  the 
sovereign  and  police  power  of  the  state.     Is  it  within  those  powers? 

I. — The  Police  Power. 

Definitions  of  the  police  power  are  multitudinous;  a  few  of  them 
are  submitted: 

"It  aims  to  regulate  the  intercourse  of  citizen  with  citizen,  to  pre- 
scribe the  manner  of  using  one's  property  and  pursuing  one's  occupation 
so  as  not  to  trespass  on  the  property  or  rights  of  others,  and  as  such  is 
a  power  whose  necessities  and  uses  grow  with  the  increasing  complex- 
ities of  our  civilization  and  the  increasing  diversities  in  the  industries 
and  modes  of  life.  The  sphere,  therefore,  of  its  operations  is  ever 
widening.  Every  new  use  to  which  the  forces  of  nature  are  put  calls 
for  a  new  interference  of  this  power,  that  such  use  may  not  operate  to 
the  injury  of  others."  Brewer,  J.,  in  K.  P.  Raihvay  Co.  vs.  Moore,  16 
Kan.  573. 

"The  power  we  allude  to  is  rather  the  police  power,  the  power 
vested  in  the  legislature  by  the  constitution  to  make,  ordain  and  estab- 
lish all  manner  of  wholesome  and  reasonable  laws,  statutes  and  ordi- 
nances, whether  with  penalties  or  without,  not  I'epugnant  to  the  consti- 
tution, as  they  shall  judge  to  be  for  the  good  and  welfare  of  the  com- 
monwealth and  of  the  subjects  of  the  same."  Shaw,  C.  J.,  in  Common- 
wealth vs.  Alger,  7  Cush.  (Mass.)  85. 

"This  police  power  of  the  state  extends  to  the  protection  of  the 
lives,  limbs,  health,  comfort  and  quiet  of  all  persons  and  the  protection 
of  all  property  within  the  state.  *  *  *  There  is  also  the  general  police 
power  of  the  state,  by  which  persons  and  property  are  subjected  to  all 
kinds  of  restraints  and  burdens  in  order  to  secure  the  general  health, 
comfort  and  prosperity  of  the  state,  of  the  perfect  right  in  the  legisla- 
ture to  do  which  no  question  ever  was  or,  upon  acknowledged  general 
principles,  ever  can  be  made."  Redfield,  C.  J.,  in  Thorpe  vs.  Rutland 
etc.  R.  R.  Co.,  27  Vt.  149.     Strong,  J.,  in  R.  R.  Co.  vs.  Husen,  95  U.  S.  465. 

"By  means  of  this  power  the  legislature  exercises  a  supervision  over 
matters  involving  the  common  weal  and  enforces  the  observance  by 
each  individual  member  of  society  of  the  duties  which  he  owes  to 
others  and  to  the  community  at  large.  It  may  be  exerted  whenever 
necessary  to  secure  the  peace,  good  order,  health,  morals  and  general 
welfare  of  the  community.  *  *  *  in  short,  the  police  power  covers  a 
wide  range  of  particular  unexpressed  powers  reserved  to  the  state  af- 
fecting the  freedom  of  action,  personal  conduct  and  the  use  and  control 
of  property."     Andrews,  J.,  in  People  vs.  King,  110  N.  Y.  418, 


28 

"We  hold  that  the  police  power  of  the  state  embi-aces  I'egulations 
designed  to  promote  the  public  convenience  or  the  general  prosperity, 
as  well  as  regulations  designed  to  promote  the  public  health,  the  public 
morals  or  the  public  safety."  Harlan,  J.,  in  C,  B.  cP  Q.  Ily.  Co.  vs.  Illi- 
nois, 200  U.  S.  341. 

"The  possession  and  enjoyment  of  all  rights  are  subject  to  such 
reasonable  conditions  as  may  be  deemed  by  the  governing  authority  of 
the  country  essential  to  the  safety,  health,  peace,  good  order  and 
morals  of  the  community.  *  *  *  For  the  pursuit  of  any  lawful  trade 
or  business  the  law  imposes  similar  conditions.  Regulations  respecting 
them  are  almost  infinite,  varying  with  the  nature  of  the  business." 
Field,  J.,  in  Croivley  vs.  Christianson,  137  U.  S.  86. 

"The  power  of  the  state,  sometimes  termed  its  police  power,  to  pre- 
scribe regulations  promoting  the  health,  peace,  morals,  education  and 
good  order  of  the  people,  and  to  legislate  so  as  to  increase  the  industries 
of  the  state,  develop  its  resources  and  add  to  its  welfare  and  pros- 
perity." Field,  J.,  in  Barbie)-  vs.  Connolly.  113  U.  S.  31;  Fuller,  J.,  in 
In  re  Kemmler,  136  U.  S.  436. 

"The  police  power  is  not  subject  to  any  definite  limitations,  but  is 
co-extensive  with  the  necessities  of  the  case  and  the  safeguard  of  the 
public  intrests."     Brown,  J.,  in  Camflelcl  vs.  U.  S..  167  U.  S.  518. 

"The  police  power  of  the  state  in  its  broadest  subdivision  means 
the  general  power  of  the  state  to  preserve  and  promote  the  public  wel- 
fare, even  at  the  expense  of  private  rights."  Anders,  J.,  in  Karasek  vs. 
Peier,  22  Wash.  419. 

"That  inherent  and  plenarj'  power  iu  the  state  which  enables  it  to 
prohibit  all  things  hurtful  to  the  comfort,  safety  and  welfare  of  so- 
ciety."    Dunbar,  J.,  in  State  vs.  Carey,  4  Wash.  427. 

"The  police  power  is  that  which  tends  to  promote  the  public  health, 
comfort  and  welfare."  Rudkin,  C.  J.,  in  Smith  vs.  Spokane,  55 
Wash,  221. 

Article  2,  section  35,  of  the  constitution  of  Washington  reads  as 
follows:  "The  legislature  shall  pass  necessary  laws  for  the  protection 
of  persons  working  in  mines,  factories  and  other  employments  danger- 
ous to  life  or  deleterious  to  health,  and  fix  pains  and  penalties  for  the 
enforcement  of  the  same." 

This  provision  seems  to  bring  the  subject,  in  part  at  least,  within 
the  legislative  power. 

Article  1,  section  30,  reads:  "The  enumeration  in  this  constitution 
of  certain  rights  shall  not  be  construed  to  deny  others  retained  by  the 
people." 

The  police  power  has  been  variously  applied  to  statutes  imposing 
liability  upon  or  I'egulating  the  liability  of  those  engaged  in  dangerous 
works  or  businesses.     Instances  are: 

Kirby  vs.  Pennsylvania,  etc.,  R.  R.  Co.,  76  Pa.  St.  506,  sustaining  a 
state  statute  giving  one  injured  while  engaged  on  or  near  a  railroad 
only  the  same  right  of  action  as  an  employe;  in  other  words,  abolish- 
ing in  such  cases  the  common  law  doctrine  of  respondent  superior. 
The  same  statute  was  lately  sustained  in  Martin  vs.  Pittslturgli,  etc.,  Co., 
203  U.  S.  284. 

C,  R.  I.  &  P.  Ry.  vs.  Zernecke,  59  Neb.  689,  sustaining  a  state  statute 
making  railroads  liable  for  injury  or  death  of  passengers.  AflBrmed  in 
183  U.  S.  582. 


29 

Bertholf  vs.  O'Reilly,  74  N.  Y.  509,  sustaining  a  statute  imposing 
liability  upon  the  owner  of  premises  leased  for  the  sale  of  intoxicating 
liquors  for  damages  caused  by  drunkenness. 

Bacon  vs.  Walker,  204  U.  S.  311,  sustaining  a  state  statute  imposing 
liability  upon  one  iiasturing  sheep  on  the  public  domain  within  two 
miles  of  a  dwelling. 

Jones  vs.  Brim,  165  U.  S.  180,  sustaining  a  state  statute  imposing 
liability  upon  the  owner  of  a  herd  of  animals,  driving  same  on  the 
public  road  on  a  hillside,  for  damages  caused  by  falling  rocks,  etc. 

M.  P.  Ry.  Co.  vs.  Mackey,  127  U.  S.  205,  sustaining  a  state  statute 
making  railroad  companies  liable  for  the  negligence  of  fellow-servants. 

Minneapolis,  etc.,  R.  R.  Co.  vs.  Emmons,  149  U.  S.  364,  sustaining  a 
state  statute  making  railroad  companies  liable  for  stock  killed  on  their 
unfenced  right-of-way. 

St.  Louis,  etc.,  Ry.  Co.  vs.  Matthews,  165  U.  S.  1,  sustaining  a  state 
statute  imposing  liability  upon  railroad  companies  for  damage  caused 
by  fire  set  out  by  their  locomotives. 

Atchison  etc.  R.  R.  Co.  vs.  Matthews,  174  U.  S.  96,  and 

Missouri  Pacific  R.  R.  Co.  vs.  Humes,  115  U.  S.  512,  are  like  cases. 

Wilmington  Mining  Co.  vs.  Fulton,  205  U.  S.  60,  making  mine  owners 
liable  for  the  negligence  of  mine  examiners  employed  pursuant  to 
state  examination. 

Ives  vs.  R.  R.  Co.,  124  N.  Y.  Supp.  920  (since  affirmed  by  the  supreme 
court  of  New  York),  sustaining  a  state  statute  making  employers  en- 
gaged in  dangerous  work  insurers,  to  some  extent,  of  the  safety  of 
their  workmen. 

Kiley  vs.  Chicago,  etc.,  Ry.  Co.,  138  Wis.  215,  sustaining  a  state 
statute  making  railroad  companies  liable  for  negligence  of  fellow  ser- 
vants. 

Missouri  Pacific  Ry.  Co.  vs.  Healy,  25  Kan.  35; 

Buckloio  vs.  Central  la.  Ry.  Co.  (la.),  21  N.  W.  103; 

Pierce  vs.  Van  Duzen,  78  Fed.  693; 

Campbell  vs.  Cook,  86  Tex.  630,  are  like  cases. 

State  statutes  limiting  the  hours  of  labor  have  been  sustained  be- 
cause within  the  police  power  in  numerous  cases.  Instances  are: 

Holclen  vs.  Hardy,  169  U.  S.  366,  sustaining  a  state  statute  limiting 
the  hours  of  labor  in  underground  mines  and  smelters. 

State  vs.  Buchanan,  29  Wash.  602,  sustaining  a  state  statute  pro- 
hibiting the  employment  of  women  more  than  ten  hours  a  day  in  mer- 
cantile pursuits. 

Muller  vs.  Oregon,  208  U.  S.  412,  is  a  like  case. 

So  it  seems  safe  to  conclude  that  the  proposed  act  is  within  the 
police  power  of  the  state.  It  remains  to  consider  whether  the  manner 
of  the  exercise  of  the  power  as  proposed  is  obnoxious  to  any  constitu- 
tional provision.  Does  it  conflict  with  the  constitutional  rights  of  any 
interest  affected  by  it?     It  affects  the  state,  the  employer,  the  employe. 


30 

II. — Validity  as  to  the  State. 
The  act  proposes  to  create  a  new  state  department,  and  to  appro- 
priate a  sum  of  money  out  of  the  state  treasury  to  defray  the  ex- 
penses of  the  administi'ation  of  the  department.  Washington  has  no 
constitutional  limitation  upon  the  power  of  the  legislature  to  expend 
as  it  wills  the  money  of  the  state  (except  the  permanent  school  fund, 
which  is  not  here  involved,  and  except  that  no  public  money  may  be 
appropriated  for  any  religious  worship  or  establishment),  unless  there 
be  a  limitation  to  be  implied,  that  taxation  shall  only  be  for  public 
purposes.  If  so,  it  nevertheless  must  be  clear  that  it  is  a  public  pur- 
pose to  pay  the  salaries  and  defray  the  office,  traveling  and  court  ex- 
penses of  state  officials,  and  other  expenses  of  a  state  department 
charged  with  the  administration  of  a  branch  of  the  police  power  of 
the  state,  just  as  the  state  bears  without  question  the  expense  of  ad- 
ministration of  other  departments,  e.  g.,  the  railroad  commission,  mine, 
factory,  grain  and  hotel  inspection,  all  operating  under  the  police 
power. 

III. — Validity  as  to  the  Employer,  Direct. 

The  act  proposes  to  place  (indirectly)  upon  the  employer  engaged 
In  extra  hazardous  operations  the  burden  of  all  accidents  to  his  em- 
ployes. The  causes  of  action  for  injury  to  workmen  recognized  in 
present  day  law  involve  negligence  of  either:  (a)  the  employer;  (b) 
a  fellow  employe;  (c)  the  employer,  that  of  the  injured  employe  con- 
tributing, i.  e.,  combined  negligence;  (d)  the  employe;  or  (e)  the 
doctrine  of  assumed  risk. 

For  (a)  the  burden  is  already  upon  the  employer. 

For  (b)  the  burden  has  been  in  some  jurisdictions  shifted  by  statute, 
in  some  cases  as  to  certain  and  in  others  as  to  all  employments:  Ar- 
kansas 1907,  Colorado  1901,  Florida  1906,  Georgia  1895,  Iowa  1897  and 
1902,  Kansas  1874  and  1901,  Maryland  1888,  Minnesota  1905,  Missouri 
1899,  Montana  1905,  Nebraska  1907,  Nevada  1907,  New  Mexico  1897, 
North  Carolina  1905,  North  Dakota  1907,  South  Dakota  1907,  Texas 
1897,  Wisconsin  1898,  and  such  statutes  have  been  sustained  by  the 
courts  as  a  lawful  exercise  of  the  police  power. 

Missouri  Pacific  Ry.  Co.  vs.  Mackey,  127  U.  S.  205,  in  which  the 
court,  in  sustaining  the  Kansas  act  of  1874  abolishing  the  fellow  servant 
doctrine  in  the  case  of  railroad  companies,  said: 

"The  supposed  hardship  and  injustice  consist  in  imputing  liability  to 
the  company,  where  no  personal  wrong  or  negligence  is  chargeable  to 
it  or  its  directors.  But  the  same  hardship  and  injustice,  if  there  be 
any,  exist  when  the  company,  without  any  wrong  or  negligence  on  its 
part,  is  charged  for  injuries  to  passengers.  Whatever  care  and  precau- 
tion may  be  taken  in  conducting  its  business  or  in  selecting  its  servants, 
if  injury  happen  to  the  passengers  from  the  negligence  or  incompetency 
of  the  servants,  responsibility  therefor  at  once  attaches  to  it.  The  ut- 
most care  on  its  part  will  not  relieve  it  from  liability,  if  the  passenger 
injured  be  himself  free  from  contributory  negligence.  The  law  of  1874 
extends  this  doctrine  and  fixes  a  like  liability  upon  railroad  companies, 
where  injuries  are  subsequently  suffered  by  employes,  though  it  may 
be  by  the  negligence  or  incompetency  of  a  fellow  servant  in  the  same 
general  employment  and   acting  under  the  same  immediate  direction. 


31 

That  its  passage  was  within  the  competency  of  the  legislature  we  have 
no  doubt." 

Kiley  vs.  Chicago  etc.  Ry.  Co.,  138  Wis.  215; 

Ditherner  vs.  Chicago  etc.  Ry.  Co.,  47  Wis.  128; 

Missouri  Pacific  Ry.  Co.  vs.  Healy,  2.5  Kan.  35; 

Missouri  Pacific  Ry.  Co.  vs.  Mackey,  33  Kan.   298; 

Bucklew  vs.  Central  Iowa  Ry.  Co.   (la.),  21  N.  W.  103; 

McAunich  vs.  M.  <£•  R.  Co.,  20  la.,  338; 

Mining  Co.  vs.  Firsthrook,  36  Col.  498; 

Deppe  vs.  R.  R.  Co.,  36  la.  52; 

Pierce  vs.  YanDuzen,  78  Fed.  693; 

Campbell  vs.  Cook,  86  Tex.  630; 

Thompson  vs.  Banking  Co.,  54  Ga.  509; 

Railroad  Co.  vs.  Ivey,  73  Ga.  499; 

Missouri  Pacific  Ry.  Co.  vs.  Castle  (C.  C.  A.),  172  Fed.  841. 

(c)  It  was  also  a  like  defense  that  the  negligence  of  the  injured 
employe  contributed,  even  though  slightly,  to  the  injury.  In  some 
jurisdictions  the  legislatures,  in  others  the  courts,  have  modified  the 
rigor  of  this  defense.  In  some,  where  the  contributory  negligence  is 
slight,  it  is  no  longer  a  defense,  but  is  considered  in  mitigation  of 
damages;  statutes  of  Nebraska  1907,  Nevada  1907,  North  Dakota  1907, 
act  of  Congress  1906,  sustained  in  R.  R.  Co.  v.  Gutierrez,  215  U.  S.  87. 
In  Wisconsin,  by  the  statute  of  1898,  the  test  is  whether  the  negligence 
of  the  employer  was  greater  than  that  of  the  injured  employe.  By 
some  state  statutes  it  is  made  a  pro  tanto  defense  v^/^ithout  regard  to 
preporderance:  Florida  1906,  Maryland  1888,  Georgia  1895,  South  Da- 
kota 1907. 

In  Illinois  the  courts  for  a  period  of  years  adopted  without  statute 
the  doctrine  of  comparative  negligence,  their  decisions  varying  upon 
the  question  of  preponderance: 

Railroad  Co.  vs.  Still,  19  111.  499; 
Raih-oad  Co.  vs.  Jacobs,  20  111.  478; 
Railroad  Co.  vs.  Sweeny,  52  111.  325; 
Railroad  Co.  vs.  Johnson,  116  111.  206; 
Coal  Co.  vs.  Abbott,  181  111.  495; 
Coal  Co.  vs.  Denman,  185  111.  413; 
Western  Coal  Co.  vs.  Weaver,  192  111.  333. 

The  Georgia  statute  was  enforced  in  the  following  cases: 

Christian  vs.  Ry.  Co.,  120  Ga.  314 
Railroad  Co.  vs.  Wiggins,  113  Ga.  842; 
Willinghatn  vs.  Railroad  Co.,  113  Ga.  374; 
Railroad  Co.  vs.  Netoman,  94  Ga.  560; 

and  has  been  applied  to  the  case  of  a  passenger  by  the  Circuit  Court 
of  Appeals,  opinion  by  Judge  Taft,  in  88  Fed.  455. 

Tennessee  and  Kansas  courts  have  also  adopted  the  doctrine,  there 
being  no  statute: 

Railroad  Co.  vs.  Carroll,  6  Heisk,  347; 
Wichita  etc.  Co.  vs.  Davis,  37  Kan.  743. 

Other  states  have  by  statute  abolished,  in  whole  or  in  part,  for  cer- 
tain classes  of  cases  the  doctrine  of  contributory  negligence:  Illinois 
1905,  New  Mexico  1897,  New  York  1902,  Ohio  1906.     In  the  courts  of 


32 

admiralty  such  a  division  of  damages  in  cases  of  combined  negligence 
has  been  the  rule  for  years  as  between  ships.  Such  statutes  have 
been  sustained  by  the  courts. 

In  Missouri  Pacific  Ry.  Co.  vs.  Castle  (C.  C.  A.),  172  Fed.  841,  the 
court  said:  "In  so  far  as  the  statute  creates  the  rule  of  comparative 
negligence  it  in  ho  wise  tends  to  destroy  any  of  the  constitutional 
rights  of  the  defendant."  In  the  language  of  Mr.  Justice  Moody  in 
the  Howard  case,  "The  whole  subject  of  contributory  negligence  is 
under  the  control  of  the  legislative  power." 

Therefore  it  seems  safe  to  conclude  that  the  defense  of  contril)utory 
negligence  may  be  lawfully  abolished  entirely. 

(e)  The  doctrine  of  the  defense  of  assumed  risk  is  approximately 
of  the  same  age  as  the  fellow  servant  defense.  It  is  no  more  sacred. 
It  has  been  by  statute  in  several  states  eliminated  in  part,  and  in  some 
states  entirely,  in  cases  where  statutes  or  public  regulations  concern- 
ing safeguards  have  been  violated  by  the  employer:  Illinois  1905, 
Indiana  1891,  Iowa  1902,  Massachusetts  1902,  New  York  1902,  Ohio 
1904  and  1906,  Florida  1891,  Texas  1891,  Washington  1905,  Wisconsin 
1906,  Wyoming  1891,  United  States  1901.  Such  legislation  has  been 
generally  sustained  by  the  courts: 

Ives  vs.  Railroad  Co.,  124  N.  Y.  Supp.  920; 

Hall  vs.  West  <t  Slade  Mill  Co.,  39  Wash.  447; 

Johnson  vs.  8.  P.  Co.,  196  U.  S.  1. 

WalJcer  vs.  Railroad  Co.,  135  N.  C.  738; 

Mott  vs.  Railroad  Co.,  131  S.  C.  234; 

Cogdell  vs.  Ry.  Co.,  129  N.  C.  398; 

Thomas  vs.  Railroad  Co.,  129  N.  C.  392; 

Coal  Co.  vs.  Abbott,  181  111.  495; 

Coal  Co.  vs.  Denman,  185  111.  413; 

Davis   Coal  Co.  vs.  Polland,   27   Ind.  App.   697; 

Island  Coal  Co.  vs.  Swaggerty,  159  Ind.  664; 

Islarramore  vs.  Ry.  Co.,  96  Fed.  298; 

V.  S.  Cement  Co.  vs.  Cooper  (Ind.),  92  N.  E.  981; 

Hailey  vs.  Ry.  Co.,  113  La.  533; 

Murphy  vs.  u-rand  Rapids  Co.,  142  Mich.  677; 

Kilpatrick  vs.  Ry.  Co.,  74  Vt.  288; 

Johnson  vs.  Coal  Co.,  88  Ark.  243. 

In  Coley  vs.  Railroad  Co.,  129  N.  C.  407,  s.  c.  128  N.  C.  534,  the  con- 
stitutional question  was  raised  and  expressly  decided. 

And  in  Lore  vs.  Manufacturing  Co.,  160  Mo.  608,  the  court  said: 
"The  constitutionality  of  such  laws  is  no  longer  in  doubt." 

(d)  There  remains  to  be  considered  the  case  where  the  injury 
results  from  the  fault  of  the  employe  (in  which  may  be  included  the 
employe's  portion  of  combined  negligence).  The  intentional  wrong  of 
the  employe  is  to  be  first  eliminated,  for  the  proposed  act  (section  6) 
eliminates  it.  There  are  left  the  cases  where,  through  momentary 
distraction  or  inadvertent  miscalculation,  induced  probably  frequently 
by  the  mental  or  physical  fatigue  of  the  workman,  accidental  injury 
comes  to  the  workman  without  any  intention  or  moral  fault  of  his 
own.  Such  cases  are  now  everywhere  recognized  as  inevitable;  as  a 
necessary  hazard  of  the  work;   as  certain  to  happen  as  the  machinery 


33 

to  break.  The  moral  fault  of  the  workman  being  eliminated,  the  sub- 
ject seems  as  clearly  within  the  legislative  power  as  the  doctrine  of 
assumed  risk  or  contributory  negligence. 

This  principle  should  be  applied  to  all  so-called  degrees  of  negli- 
gence. The  courts  are  today,  unaided  by  statute,  discarding  the  com- 
putation of  negligence  by  degrees,  and  are  establishing  the  simpler 
doctrine  that  negligence  is  the  absence  of  due  care,  having  in  view 
the  surrounding  circumstances  of  each  case.  So  that,  when  the  question 
of  moral  fault  is  eliminated,  the  power  of  the  legislature  to  deal  with 
the  negligence  doctrine  cannot  be  made  to  depend  upon  whether  here- 
tofore the  negligence  would  have  been  calleci  gross,  ordinary,  or  slight. 

The  New  York  court  in  the  Ives  case,  above  cited,  said: 

"That  the  legislature  has  the  power  to  deal  with  the  question  of  em- 
ployers' liability  on  a  basis  other  than  fault  is  not  clear  beyond  perad- 
venture,  but  every  presumption  is  in  favor  of  the  constitutionality  of 
the  act.  Nor  do  I  find  its  constitutionality  so  doubtful  as  to  warrant 
this  court  in  holding  that  such  action  is  not  within  the  constitutional 
power  of  the  legislature." 

The  question  is  closely  allied  to  that  of  the  legislative  power  to 
take  away  from  the  employe  his  common  law  cause  of  action  based  on 
the  negligence  of  the  employer,  which  is  hereinafter  discussed.  It 
would  seem  to  follow  that  if  the  latter  is  v/ithin  the  legislative  power 
the  legislature  is  also  competent  to  put  upon  the  industry  the  burden 
of  all  accidental  injuries  due  to  its  operation,  not  caused  by  any  moral 
wrong  of  the  employe.  The  common  law  makes  every  case  turn  upon 
some  application  of  the  doctrine  of  negligence.  If,  in  the  legislative 
discretion,  the  doctrine  of  negligence,  as  between  employer  and  injured 
employe,  has  proven  unfitted  to  the  wonderful  increase  of  hazard  in 
modern  industrial  life,  it  may  be  lawfully,  as  it  may  be  justly,  dis- 
carded as  the  test  of  liabilitj^  and  some  other  rule  substituted  in  its 
place. 

The  Supreme  Court  of  the  United  States  in  Railroad  Co.  vs.  Zernecke, 
183  U.  S.  582,  in  sustaining  the  Nebraska  act  making  railroad  com- 
panies insurers  of  the  safety  of  their  passengers  regardless  of  fault, 
said: 

"Our  jurisdiction  affords  examples  of  legal  liability  without  fault 
and  the  deprivation  of  property  without  fault  being  attached  to  its 
owner.  The  law  of  deodands  was  such  an  example;  the  personification 
of  a  ship  in  admiralty  law  is  another.  Other  examples  are  afforded  in 
the  liability  of  the  husband  for  the  torts  of  the  wife,  and  the  liability 
of  a  master  for  the  acts  of  his  servants." 

This  language  of  the  Supreme  Court  was  applied  to  the  recent  New 
York  statute  in  Ives  vs.  Ry.  Co.,  124  N.  Y.  Supp.  926. 

In  the  Osceola,  189  U.  S.  158,  it  is  held  that  the  admiralty  law 
makes  the  ship  liable  for  maintenance  and  care  and  medical  treat- 
ment of  all  seamen  injured,  whether  the  injury  was  caused  by  any 
fault  of  the  ship  or  not. 

To  the  same  effect  is  Sanders  vs.  Stimson  Mill  Co.,  32  Wash.  627. 


34 

The  Court  of  Appeals  of  New  York  in  Bertholf  vs.  O'Reilly,  74  N. 
Y.  509,  said: 

"And  the  act  of  1873  is  not  invalid  because  it  creates  a  right  of  action 
and  imj)oses  a  liability  not  known  to  the  common  law.  There  is  no 
such  limit  to  legislative  power.  The  legislature  may  alter  or  repeal 
the  common  law.  It  may  create  new  offenses,  enlarge  the  scope  of  civil 
remedies,  and  fasten  responsibility  for  injuries  upon  persons  against 
whom  the  common  law  gives  no  remedy.  We  do  not  mean  that  the 
legislature  may  impose  upon  one  man  liability  for  an  injury  suffered  by 
another  with  which  he  had  no  connection.  But  it  may  change  the  rule 
of  the  common  law,  which  looks  only  to  the  proximate  cause  of  the  mis- 
chief in  attaching  legal  r^^onsibility,  and  allow  a  recovery  to  be  had 
against  those  whose  acts  contributed,  although  remotely,  to  produce  it." 

Another  instance  of  the  imposition  of  a  new  liability  is  afforded  in 
the  case  of  Railway  Co.  vs.  Emmons,  149  U.  S.  364,  sustaining  a  state 
statute  which  required  railroads  to  fence  their  right-of-way,  and  made 
them  liable  for  damages  to  all  stock  killed  and  for  depreciation  in 
value  of  adjacent  land. 

Another  instance  is  the  case  of  Railway  Co.  vs.  Matheivs,  165  U.  S.  1, 
in  which  the  court  sustained  the  Missouri  statute  making  railroad 
companies  absolutely  liable  for  all  damage  caused  by  fire  set  out  by 
them,  saying: 

"When  both  parties  are  equally  faultless,  the  legislature  may  prop- 
erly consider  it  to  be  just  that  the  duty  of  insuring  private  property 
against  loss  or  injury  caused  by  the  use  of  dangerous  instruments  should 
rest  upon  the  railroad  company  which  employs  the  instruments  and 
creates  the  peril  for  its  own  profit,  rather  than  upon  the  owner  of  the 
property  who  has  no  control  over  or  interest  in  those  instruments.  *  * 
*  The  statute  is  a  constitutional  and  valid  exercise  of  the  legislative 
power  of  the  state." 

Another  instance  is  the  case  of  Railway  Co.  vs.  Mackey,  127  U.  S. 
205,  sustaining  a  state  statute  abolishing,  as  to  railroad  employers,  the 
fellow  servant  doctrine,  the  court  saying: 

"The  supposed  hardship  and  injustice  consist  in  imputing  liability  to 
the  company  where  no  personal  wrong  or  negligence  is  chargeable  to  it 
or  its  directors.  *  *  *  That  its  passage  was  within  the  competency 
of  the  legislature  we  have  no  doubt." 

Another  instance  is  Streubel  vs.  Railway  Co.,  12  Wis.  74,  sustain- 
ing the  constitutionality  of  an  act  imposing  liability  upon  railroad 
companies  for  the  wages  of  laborers  earned  by  work  on  its  road, 
though  in  the  employment  of  an  independent  contractor. 

Another  instance  is  the  decision  in  Jones  vs.  Brim,  165  U.  S.  180, 
sustaining  a  state  statute  imposing  absolute  liability  upon  the  owner 
of  a  herd  of  animals  for  all  damages  caused  by  driving  the  same  on  a 
public  road  on  the  hillside,  by  falling  rocks,  etc.,  the  court  saying: 

"In  effect,  the  legislature  declared  that  the  passage  of  droves  or 
herds  of  animals  over  a  hillside  highway  was  so  likely,  if  great  precau- 
tions were  not  observed,  to  result  in  damage  to  the  road,  that  where 
this  damage  followed  such  driving  there  ought  to  be  no  controversy 
over  the  existence  or  non-existence  of  negligence,  but  that  there  should 
be  an  absolute  legal  presumption  to  that  effect  resulting  from  the  fact 
of  having  driven  the  herd." 


35 

In  Jensen  vs.  Railroad  Co.,  127  N.  W.  (S.  D.)  650,  the  court  holds 
constitutional  a  statute  making  railroads  absolutely  liable  for  all  fires 
set  out  and  also  making  them  liable  absolutely  for  all  injury  to  stock 
by  failure  to  build  sufficient  fences  and  cattle  guards,  saying: 

"The  exercise  of  the  police  power  in  this  class  of  cases  is  based  upon 
the  ground  that  where  persons  are  engaged  in  a  calling  or  business  at- 
tended with  danger  to  other  persons  and  their  property,  then  the  legis- 
lature may  step  in  and  impose  conditions  upon  the  exercise  of  such 
calling  or  business  for  the  general  good  and  welfare  of  society,  and  may 
prescribe  the  terms  upon  which  such  dangerous  calling  or  business  will 
be  permitted  to  be  carried  on  by  persons  in  charge  thereof,  whether  such 
persons  happen  to  be  private  individuals  or  railway  corporations." 

It  seems  to  be  a  sound  and  safe  conclusion  that  so  far  the  proposed 
act  presents  no  real  constitutional  difficulty. 

IV. — Valiuity  as  to  Ejiployer  Indirect. 

The  question  has  so  far  been  considered  as  if  it  were  proposed  to 
place  upon  each  employer  engaged  in  hazardous  work  the  direct  re- 
sponsibility for  all  injuries  happening  to  his  own  employes.  The  pro- 
posed act  goes  further,  and,  relieving  all  such  employers  from  any 
direct  liability  whatsoever  (the  one  exception,  section  8,  is  not  of  im- 
portance in  this  connection)  to  their  employes,  requires  each  employer 
to  contribute  money  (the  amount  thereof  depending  upon  the  largeness 
of  his  operations,  his  payroll  being  the  rule  of  measure,  and  upon  the 
relative  degree  of  hazard  incident  to  the  class  of  his  work)  to  a  fund 
out  of  which  all  injured  employes  or,  if  death  results,  their  families 
and  dependents  are  compensated  and  cared  for. 

Authorities  upon  this  phase  of  the  matter  are  few,  but  fortunately 
well  reasoned  and  convincing. 

In  State  vs.  Cassidy,  22  Minn.  312,  the  court  sustained  an  act  to 
establish  a  fund  for  the  foundation  and  maintenance  of  an  asylum  for 
inebriates,  requiring  all  sellers  of  liquors  to  pay  ten  dollars  a  year  to 
the  state  treasurer,  through  the  county  treasurers,  in  addition  to  the 
usual  license,  the  fund  to  be  disbursed  bj^  a  state  commission  in  the 
erection  and  operation  of  a  state  asylum  for  inebriates.  The  court  in 
its  opinion  points  out  that  the  act  is  an  exercise  of  the  police  power 
upon  a  subject  clearly  within  that  power,  saying: 

"The  act  'regards  the  traffic  as  one  tending  to  produce  intemperance, 
and  as  likely,  by  reason  thereof,  to  entail  upon  the  state  the  expense 
and  burthen  of  providing  for  a  class  of  persons  rendered  incapable  of 
self-support,  the  evil  influence  of  whose  presence  and  example  upon  so- 
ciety is  necessarily  injurious  to  the  public  welfare  and  prosperity,  and, 
therefore,  calls  for  such  legislative  interposition  as  will  operate  as  a  re- 
straint upon  the  business,  and  protect  the  community  from  the  mis- 
chiefs, evils  and  pecuniary  burthens  flowing  from  its  prosecution.  *  * 
*  That  these  provisions  unmistakably  partake  of  the  nature  of  police 
regulations,  and  are  strictly  of  that  character,  there  can  be  no  doubt, 
nor  can  it  be  denied  that  their  expediency  or  necessity  is  solely  a  legis- 
lative, and  not  a  judicial,  question.  *  *  *  Regarding  the  law  as  a 
precautionary  measure,  intended  to  operate  as  a  wholesome  restraint 
upon  the  traffic,  and  as  a  protection  to  society  against  its  consequent 
evils,  the  exacted  fee  is  not  unreasonable  in  amount,  and  the  purpose  to 
which  it  is  devoted  is  strictly  pertinent  and  appropriate.     It  could  not 


36 

be  questioned  but  that  a  reasonable  sum  imposed  in  the  way  of  an  in- 
demnity to  the  state  against  the  expense  of  maintaining  a  police  force 
to  supervise  the  conduct  of  those  engaged  in  the  business  and  to  guard 
against  the  disorders  and  infractions  of  law  occasioned  by  its  prosecu- 
tion, would  be  a  legitimate  exercise  of  the  police  i)Ower,  and  not  open 
to  the  objection  that  it  was  a  tax  for  the  purpose  of  revenue,  and, 
therefore,  unconstitutional.  Reclaiming  the  inebriate,  restoring  him  to 
society,  prepared  again  to  discharge  the  duties  of  citizenship,  equally 
promotes  the  public  welfare,  and  tends  to  the  accomplishment  of  like 
beneficial  results,  and  it  is  difficult  to  see  wherein  the  imposition  of  a 
reasonable  license  fee  would  be  any  the  less  a  proper  exercise  of  this 
power  in  the  one  case  than  in  the  other.  The  purpose  to  which  the 
license  fund  ci-eated  by  the  act  is  designated  is  more  consonant  to  the 
idea  of  regulating  the  traffic  and  preventing  its  evils  than  is  the  case 
under  the  general  license  law,  which  devotes  the  fees  received  to  com- 
mon school  purposes,  and  we  are  not  aware  that  any  objection  has  ever 
been  urged  against  that  law  on  that  account." 

This  case  is  cited  with  approval  by  Professor  Fruend  in  his  work 
upon  the  police  power,  section  623. 

The  proposed  act  deals  with  a  class  of  hazardous  businesses  sure  to 
produce  the  crippling  and  death  of  employes,  with  the  consequent  bur- 
den on  the  state  to  support  them  and  the  consequent  evil  effect  on  the 
public  welfare  and  prosperity. 

The  Court  of  Appeals  of  New  York  in  Bertliolf  vs.  O'Reilly,  supra, 
speaking  in  justification  of  an  exercise  of  the  police  power  in  connec- 
tion with  the  sale  of  intoxicants,  says:  "Impoverishment  of  families, 
the  imposition  of  public  burdens,  and  insecurity  of  liie  and  liberty  are 
consequent  upon  the  prevalence  of  the  great  evil  of  intemperance." 

There  seems  to  be  a  reasonable  analogy  in  the  statute  of  South 
Carolina  providing  for  the  appointment  of  railroad  commissioners  and 
requiring  the  expense  of  the  department  to  be  borne  by  the  several 
railroads  of  the  state  "according  to  their  gross  income  proportioned  to 
the  number  of  miles"  in  the  state.  The  Supreme  Court  of  the  state 
sustained  the  act,  holding  that  the  enforced  contribution  was  not  a 
tax  within  the  meaning  of  the  provision  of  the  state  constitution  re- 
quiring all  taxes  to  be  unifoi-m,  but  was  more  in  the  nature  of  a 
license  fee. 

Charlotte,  etc.,  Railroad  Co.  vs.  Gihies,  27  S.  C.  385. 

The  case  came  before  the  Supreme  Court  of  the  United  States  in 
142  U.  S.  386.  The  Supreme  Court,  stating  that  the  duties  of  the  rail- 
road commissioners  are  in  the  highest  degree  beneficial  to  the  public, 
said  that  the 

"Mode  or  manner  of  regulation  is  a  matter  of  legislative  discretion. 
*  *  *  Their  services  are  for  the  benefit  of  the  railroad  corporations 
as  well  as  of  the  public.  *  *  There  would  seem  to  be  no  sound  reason 
why  the  compensation  of  the  commissioners  in  such  case  should  not  be 
met  by  the  corporations  the  operation  of  whose  roads,  and  the  exercise 
of  whose  franchises,  are  supervised.  *  *  There  are  many  instances 
where  i)arties  are  compelled  to  perform  certain  acts,  and  to  bear  cer- 
tain expenses,  when  the  public  is  interested  in  the  acts  which  are  per- 
formed as  much  as  the  parties  themselves." 

A  like  analogy  is  suggested  in  the  New  York  act  appointing  a  sub- 
way commission  to  supervise  the  putting  underground  of  electric  wires 


37 

and  requiring  the  salaries  and  expenses  of  the  commission  to  be  paid 
out  of  the  fund  to  be  paid  into  the  state  treasury  by  the  companies 
operating  electrical  conductors  underground  pl•oportionatelJ^  This  act 
was  sustained  by  the  Supreme  Court  of  the  United  States  in  the  case 
of  People  vs.  Squire,  145  U.  S.  175,  upon  the  authority  of  the  Gibbes 
case. 

In  Consolidated  Coal  Co.  vs.  Illinois,  185  U.  S.  207,  the  Illinois  act 
was  sustained  iDroviding  for  the  inspection  of  coal  mines  and  imposing 
a  liability  on  each  mine  inspected  for  the  inspection  fee  of  six  dollars 
to  ten  dollars  for  each  visit,  the  number  of  visits  to  be  determined  by 
the  inspector. 

It  must  be  admitted  that  in  practice  individual  cases  may  arise  in 
which  the  contribution  of  an  employer  may  exceed  the  sums  paid  out 
of  the  fund  to  his  own  employes;  in  other  words,  cases  may  arise  in 
which  one  employer  will  be  found  to  have  contributed  to  pay  for  the 
compensation  to  and  care  of  the  injured  employes  of  other  employers. 
The  same  condition  existed  in  the  Minnesota  statute,  supra.  It  seems 
an  answer  to  say  that  perfection  or  perfect  equality  is  not  expected  or 
required  of  legislation  [Ry.  Co.  vs.  Melton,  218  U.  S.  36);  and  if  such 
inequalities  do  arise,  the  courts  will  not  presume  but  that  the  legis- 
lature will  make  use  of  the  statistics  gathered  in  the  operation  of  the 
act  to  readjust  the  schedules  of  contribution  so  as  to  more  closely  ap- 
proximate exact  equality.  The  proposed  act  declares  such  intent  (sec- 
tion 4),  and  the  same  section  provides  for  increasing  the  rate  of  con- 
tribution of  the  careless  employes,  and  careful  provision  is  made  for  re- 
adjustment at  the  end  of  each  year. 

The  marine  hospital  act,  hereinafter  referred  to,  would  have  been 
subject  to  the  same  criticism,  in  that  it  required  the  master  or  owner 
of  every  ship  to  pay  into  the  treasury  of  the  United  States  twenty-five 
cents  (later  forty  cents)  per  month  for  each  seaman  employed,  the 
fund  to  be  used  for  the  support  of  the  U.  S.  Marine  Hospital.  This 
imposition  was  laid  without  regard  to  the  extent  of  use  or  need  of 
the  hospital  by  the  seamen  of  any  particular  ship. 

Several  of  the  states  (Indiana,  Michigan,  Illinois  and  Kentucky), 
exercising  the  police  power  for  the  promotion  of  the  sheep  industry, 
have  enacted  statutes  imposing  a  tax  or  license  upon  dogs  in  a  stated 
sum,  collecting  the  same  from  the  owners,  placing  the  collections  in 
a  public  fund,  and  disbursing  the  same  through  state  officers  in  paying 
damages  to  owners  of  sheep  for  sheep  killed  by  dogs.  These  statutes 
have  been  in  every  case  sustained  by  the  courts: 

McGlone  vs.  Womack.  Ky.  Court  of  Appeals,  111  S.  W.  688; 
Mitchell  vs.  Williayns,  27  Ind.  62; 
.Van  Home  vs.  People,  46  Mich.  183; 
Cole  vs.  Hall.  103  111.  30; 
Holtz  vs.  Roe,  39  Ohio  St.  340. 

In  the  first  of  these  cases  the  very  question  above  presented  is  de- 
cided. While  there  is  a  strong  dissenting  opinion,  it  is  submitted  that 
the  grounds  of  the  dissent  in  that  respect  are  largely,  if  not  entirely, 
removed,  by  the  provisions  of  the  proposed  act  last  above  referred  to. 


38 

V. — Valiuity  as  to  Employe. 

The  proposed  act  takes  away  absolutely  from  him  his  common  law 
right  of  action  against  his  employer  for  non-fatal  injuries  caused  by 
the  employer's  negligence.  As  to  fatal  injuries,  a  cause  of  action 
against  an  employer  was  unknown  to  the  common  law,  is  of  statutory 
creation,  and  consequently  (since  the  constitution  of  the  state  con- 
tains no  inhibition)  is  subject  without  question  to  repeal  by  the  legis- 
lature. The  proposed  act  carefully  saves  any  right  of  action  on  ac- 
count of  any  injury  received  prior  to  the  date  named  for  it  to  be- 
come operative  upon  the  employers  and  employes  affected  by  it.  The 
question  involves,  not  the  taking  away  of  a  vested  right  of  action,  but 
the  changing  of  the  law  in  respect  of  expectancies  and  possibilities 
of  action,  in  which  the  party  has  no  pi'esent  interest. 

At  an  early  day  the  legislature  of  Pennsylvania  passed  a  statute 
abolishing  the  doctrine  of  respondent  superior  in  the  case  of  persons 
engaged  on  or  near  railroads  and  not  in  the  employ  of  the  railroad 
company.  The  Supreme  Court  of  Pennsylvania  in  Eirby  vs.  Railroad 
Co.,  76  Pa.  St.  506,  said  of  the  act: 

"The  law  says  that  the  legal  principle  of  respondeat  superior  shall 
have  no  place  in  this  particular  relation;  that  as  a  matter  of  public 
policy  for  the  good  of  all,  those  who  voluntarily  venture  into  employ- 
ment alongside  of  the  servants  of  a  railroad  company  shall  have  just  the 
same  remedies  for  injuries  happening  in  the  employment  that  these 
have,  and  none  other.  In  doing  this  no  fundamental  right  of  the  per- 
son thus  voluntarily  venturing  is  cut  off  or  struck  down.  The  liability 
of  the  company  for  the  acts  or  omissions  of  others,  though  they  be 
servants,  is  only  an  offspring  of  law.  The  negligence  which  injures  is 
not  theirs  in  fact,  but  is  so  only  by  imputation  of  law.  The  law  which 
thus  imputes  it  to  the  company,  for  reasons  of  public  policy,  can  re- 
move the  imputation  from  the  master  and  let  it  remain  with  the 
servant  whose  negligence  causes  the  injury." 

The  Supreme  Court  of  the  United  States,  in  Martin  vs.  Railroad 
Co..  203  U.  S.  284,  had  before  it  the  same  statute,  and  sustained  it, 
saying: 

"If  it  be  conceded,  as  contended,  that  the  plaintiff  in  error  could 
have  recovered  but  for  the  statute,  it  does  not  follow  that  the  legislature 
of  Pennsylvania,  in  preventing  a  recovery,  took  away  a  vested  right  or 
a  right  of  property.  As  the  accident  from  which  the  cause  of  action  is 
asserted  to  have  arisen  occurred  long  after  the  passage  of  the  statute, 
it  is  difficult  to  grasp  the  contention  that  the  statute  deprived  the  plain- 
tiff in  error  of  the  rights  just  stated.  Such  a  contention,  in  reason, 
must  rest  upon  the  proposition  that  the  state  of  Pennsylvania  was 
without  potoer  to  legislate  on  the  subject — a  proposition  which  we  have 
adversely  disposed  of.  This  must  be,  since  it  would  clearly  follow,  if 
the  argument  relied  upon  were  maintained,  that  the  state  would  be 
without  power  on  the  subject.  For  it  cannot  be  said  that  the  state  had 
authority  in  the  premises  if  that  authority  did  not  even  extend  to  pre- 
scribing a  rule  which  would  be  applicable  to  conditions  wholly  arising 
in  the  future." 

A  right  of  action  in  favor  of  a  third  person  against  a  master  for 
negligence  of  his  servant  was  a  common  law  right  of  action: 

Littleton  vs.  Fowler,  1  Salk.  282; 

Blackstone's  Com.  431; 

Gray  vs.  Portland  Bank.  3  Mass.  363; 

Harlow  vs.  Humiston,  6  Cowen  189. 


39 

Judge  Cooley,  in  his  work  on  constitutional  limitations,  page  438 
et  seq.,  says: 

"Vested  rights  cannot  be  taken  away  by  legislative  enactments,  but 
a  right  cannot  be  considered  a  vested  right  unless  it  is  something  more 
than  such  a  mere  expectation  as  may  be  based  upon  the  anticipated  con- 
tinuance of  the  present  general  laws.  The  legislature  may  change  such 
general  laws  constitutionally  except  as  to  a  right  or  interest  that  may 
have  already  accrued  or  become  perfected.  *  *  *  in  organized  society 
every  man  holds  all  he  possesses  and  looks  forward  to  all  he  hopes  for 
through  the  aid  and  under  the  protection  of  the  laws;  but,  as  changes 
of  circumstances  and  of  public  opinion,  as  well  as  other  reasons  affecting 
the  public  policy  are  all  the  while  calling  for  changes  in  the  laws,  and 
as  these  changes  must  influence  more  or  less  the  value  and  stability  of 
private  relations  and  strengthen  or  destroy  well  founded  hopes,  and  as 
the  power  to  make  very  many  of  them  could  not  be  disputed  without 
denying  the  right  of  the  political  community  to  prosper  and  advance, 
it  is  obvious  that  many  rights,  privileges  and  exemptions  that  usually 
pertain  to  ownership  under  a  particular  state  of  law,  and  many  reson- 
able  expections.  cannot  be  regarded  as  vested  rights  in  any  sense." 

The  Supreme  Court  of  the  United  States  in  Munn  vs.  Illinois,  94 
U.  S.  113,  said: 

"But  a  mere  common  law  regulation  of  trade  or  business  may  be 
changed  by  statute.  A  person  has  no  property,  no  vested  interest,  in 
any  rule  of  the  common  law.  That  is  only  one  of  the  forms  of  munic- 
ipal law,  and  is  no  more  sacred  than  any  other.  Rights  of  property 
which  have  been  created  by  the  common  law  cannot  be  taken  away 
without  due  process;  but  the  law  itself,  as  a  rule  of  conduct,  may  be 
changed  at  the  will  or  even  at  the  whim  of  the  legislature,  unless  pre- 
vented by  constitutional  limitations.  Indeed,  the  great  office  of  statutes 
is  to  remedy  defects  in  the  common  law  as  they  are  developed,  and  to 
adapt  it  to  changes  of  time  and  circumstances." 

Applied  to  the  relation  of  master  and  servant  in  Mining  Co.  vs. 
Firstbrook,  36  Col.  498. 

In  the  Ives  case,  supra,  the  court  said:  "The  legislature  may 
alter  or  repeal  the  common  law.  It  may  create  new  offenses,  enlarge 
the  scope  of  civil  remedies,  and  fasten  the  responsibility  for  injuries 
upon  persons  against  whom  the  common  law  gives  no  remedy,"  the 
language  being  a  quotation  from  the  decision  of  the  Court  of  Appeals 
in  the  Bertliolf  case,  supra. 

Some  of  the  states  have  in  their  constitutions,  in  substance,  the 
provision  of  Magna  Charta:  "Every  man  shall  have  a  remedy  for 
injury  done  him  in  person,  property  or  reputation."  (No  such  pro- 
vision is  contained  in  the  constitution  of  Washington).  Nevertheless, 
the  principle  last  above  stated  has  been  sustained  in  states  having 
such  a  constitutional  provision.     In.stances  are: 

Templeton  vs.  Linn  County,  15  L.  R.  A.  730,  in  which  the  Supreme 
Court  of  Oregon  said: 

"The  words  'and  every  man  shall  have  a  remedy  by  due  process  of 
law  for  injury  done  him  in  person,  property,  or  reputation,'  are  claimed 
to  operate  as  a  guaranty  in  favor  of  all  persons  who  might  be  injured 
by  a  county's  neglect,  that  the  legislature  should  never  so  change  the 
statute  as  to  destroy  the  liability  of  such  county.  In  other  words,  the 
constitution  found  a  certain  liability  created  by  statute  resting  upon 
the  several   counties,   and  tied   the  hands  of  the  legislature,   so  that 


40 

such  liability  should  endure  as  long  as  the  constitution  shall  remain 
in  force.  As  a  proposition  of  constitutional  law,  this  contention  seems 
startling,  and,  although  the  constitution  of  many  of  the  states  of  this 
Union  contain  substantially  the  same  provision  as  section  10,  supra,  no 
judicial  authority  was  cited  upon  the  argument  in  supjjort  of  it,  and 
I  think  it  may  be  safely  assumed  that  none  exists.  *  *  *  At  the 
time  of  the  repeal  the  plaintiff  had  no  cause  of  action  against  Linn 
County,  and  her  sole  cause  of  complaint  is  that  the  repeal  of  the  statute 
before  the  injury  cut  off  a  cause  of  action  which  she  otherwise  would 
have  had  against  the  county.  *  *  *  Vested  rights  are  placed  under 
constitutional  protection,  and  cannot  be  destroyed  by  legislation.  Not 
so  with  those  expectancies  and  possibilities  in  which  the  party  has 
no  present  interest." 

Williams  vs.  Oalveston  (Texas  Civil  Appeals),  90  S.  W.  505,  in 
which  the  court  said: 

"The  citizen  has  no  propei-ty  right  in  a  rule  of  law,  and,  while 
rights  may  accrue  to  him  under  the  operation  of  a  legal  rule  which 
becomes  vested  and  cannot  be  taken  away  from  him  by  the  change  of 
the  rule,  he  cannot  be  heard  to  complain  if,  before  such  property 
rights  become  vested,  the  rule  is  so  changed  that  no  rights  can  accrue 
thereunder." 

SO'ivyer  vs.  Ry.  Co.,  108  S.  W.  (Tex.)  718,  involving  the  constitu- 
tionality of  a  statute  providing  that  no  action  should  be  brought  for 
personal  injuries  unless  a  certain  kind  of  affidavit  was  served  within 
ninety  days,  the  court  saying: 

"Conceding  that  a  cause  of  action  for  personal  injuries  is  property, 
the  cause  of  action,  i.  e.,  the  property,  must  exist  before  one  can  be 
deprived  of  it  at  all.  A  statute  which  abrogates  a  cause  of  action  for 
personal  injury  before  such  cause  of  action  has  arisen  or  before  the 
injury  occurs,  or  requires  certain  things  to  be  done  by  the  injui'ed 
party  as  conditions  precedent  to  a  cause  of  action,  does  not  deprive  the 
injui'ed  party  of  his  property  without  due  process  of  law.  *  *  *  jjj 
other  words,  the  legislature  may  create  a  right  of  action  which  never 
existed  before,  or  abolish  one  that  had  before  existed,  if  in  doing  so  it 
does  not  affect  rights  which  vested  prior  thereto.  A  party  injured 
after  the  legislature  has  taken  away  the  right  of  action  for  personal 
injuries  can  no  more  complain  of  it  than  a  party  against  whom  a  right 
of  action  is  given  for  an  injury  resulting  in  death  can  of  such  a 
legislative  enactment.  For  the  one  i)arty  is  no  more  injuriously 
affected  by  such  legislation  than  the  other.  In  the  one  case,  what  was 
before  actionable  ceases  to  be  so;  in  the  other,  what  was  not  before 
actionable  becomes  so." 

There  is  a  conflict  of  authority  upon  the  point  here  under  con- 
sideration among  the  courts  of  states  having  in  substance  the  above 
quoted  provision  of  the  Oregon  statute. 

The  Maryland  constitution  contains  a  like  provision.  In  1902  the 
legislature  of  Maryland  enacted  a  statute  along  the  lines  of  the  pro- 
posed act  (though  not  so  extensive  in  application)  and  it  was  held 
unconstitutional  by  the  court  of  Common  Pleas  in  a  decision  rendered 
In  1904.  The  case  was  not  appealed,  and  upon  the  rendition  of  the 
decision  the  fund  was  closed  out  and  operation  under  the  act  aban- 
doned. The  court  ruled  that  the  act  was  unconstitutional  in  respect 
of  the  constitutional  provision  above  mentioned,  in  connection  with  the 
jury  trial  provision  of  the  constitution. 

At  the  time  of  the  adoption  of  the  constitution  of  Washington   a 


41 

statute  provided  that  the  common  law,  so  far  as  not  inconsistent  with 
the  constitution  and  laws  of  the  United  States  or  of  the  state  of  Wash- 
ington, nor  incompatible  with  the  institutions  and  condition  of  society 
in  this  state,  should  be  the  rule  of  decision  in  all  the  courts  of  this 
state.  Article  27,  section  2,  provides  that  all  laws  in  force  in  the 
territory  at  the  time  of  the  adoption  of  the  constitution,  not  repug- 
nant to  the  constitution,  should  remain  in  force  until  they  expired 
by  their  own  limitation  or  were  altered  or  repealed  by  the  legislature. 
This  seems  to  be  an  implied  constitutional  recognition  of  the  right  of 
the  legislature  to  alter  or  repeal  the  common  law. 

Considering  that  the  legislature  of  Washington  is  not  liampered 
by  such  a  constitutional  provision  as  that  of  Maryland,  and  that  the 
weight  of  authority  is  clearly  in  favor  of  the  legislative  power  in 
the  respect  herein  presented,  it  seems  entirely  safe  to  conclude  that 
the  proposed  act  is  valid  in  that  respect. 

VI. — Non-Application  of  Jury  Trial  Provision. 

If  this  conclusion  is  correct,  it  would  seem  to  dispose  of  any  ques- 
tion arising  under  the  language  of  Article  1,  Section  21,  of  the  con- 
stitution of  Washington:  "The  right  of  trial  by  jury  shall  i-emain 
Inviolate."  Along  the  line  of  that  conclusion  the  constitution  is  not  to 
be  construed  as  reading  that  a  provision  of  law  previously  existing, 
creating  out  of  certain  facts  coming  into  existence  in  the  future  a 
right  of  action,  is  to  continue  unchanged  forever  as  to  facts  yet  to 
come  into  existence,  but  rather  that  every  person,  having  today  or  to- 
morrow a  cause  of  action  recognized  by  existing  law,  shall  have  a 
right  to  demand  a  jury  trial  of  his  case  if  the  right  of  a  jury  trial  of 
such  a  case  existed  at  the  time  of  the  adoption  of  the  constitution; 
in  other  words,  the  constitution  provides  for  jury  trial  if  there  is 
to  be  a  trial. 

The  Supreme  Court  of  California,  in  Koppikus  vs.  Capitol  Com- 
missioners. 16  Cal.  248,  said:  "There  must  be  an  action  at  law,  as 
contra-distinguished  fi'om  a  suit  in  equity  and  from  a  special  pro- 
ceeding or  a  criminal  action,  and  an  issue  of  fact  joined  therein  upon 
the  pleadings  before  a  jury  trial  can  be  claimed  as  a  constitutional 
right." 

See  also: 

24  Cyc.  106; 

East  Kingston  vs.  Towle,  48  N.  H.  57. 

Under  the  common  law,  in  an  action  by  an  employe  against  his 
employer  for  negligence  causing  personal  injury,  the  employer  had  the 
same  right  of  trial  by  jury  as  the  employe.  The  proposed  act  abolishes 
the  doctrine  of  negligence  in  that  relation,  and  provides  for  a  pay- 
ment of  a  sum  certain  to  the  injured  employe. 

The  1910  act  of  New  York  did  the  same  thing,  except  it  imposed 
the  liability  for  the  stated  amount  directly  upon  the  employer,  and 
in  the  Ives  case  the  employer  challenged  the  validity  of  the  act  on 
the  ground  that  it  violated  the  jury  trial  provision  of  the  New  York 
constitution.     The  act  was  sustained  by  the  court. 


42 

VII. — The  Fourteenth  Amendment. 

The  fourteenth  amendment  to  the  constitution  of  the  United  States: 
"Nor  shall  any  state  deprive  any  person  of  life,  liberty  or  property 
without  due  process  of  law,  nor  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws,"  is  yet  to  be  considered.  If 
the  proposed  act  does  not  contravene  its  provisions,  Article  1,  Section 
3,  of  the  constitution  of  Washington:  "No  person  shall  be  deprived 
of  life,  liberty  or  property  without  due  process  of  law,"  and  section  12 : 
"No  law  shall  be  passed  granting  to  any  citizen,  class  of  citizens  or 
corporation,  other  than  municipal,  privileges  or  immunities  which, 
upon  the  same  terms,  shall  not  equally  belong  to  all  citizens  and  cor- 
porations," will  not  need  separate  consideration. 

The  amendment  seems  to  have  four  points  of  possible  application 
here: 

1.— Due  Process  of  Law. 

The  pi'oposed  act  provides  for  a  court  review  of  all  disputes  arising 
under  it  (there  are  a  few  exceptions  of  cases  where  certain  departures 
in  favor  of  employer  or  employe  from  the  general  rule  of  right  or  ob- 
ligation laid  down  are  submitted  to  the  discretionary  action  of  the 
department),  and  it  is  provided  (section  23)  that,  while  the  appellate 
proceeding  shall  be  informal  and  summary  in  other  respects,  the  prac- 
tice in  civil  cases  shall  obtain,  and  in  no  case  shall  judgment  be  pro- 
nounced without  full  opportunity  to  be  heard.  So  far  as  the  court 
proceedings  are  concerned,  they  seem  to  satisfy  the  requirements  of 
the  amendment  according  to  the  rules  laid  down  by  the  Supreme 
Court  of  the  United  States. 

Mr.  Justice  White,  speaking  for  a  unanimous  court,  in  Louisville, 
etc.,  Ry.  Go.  vs.  Schmidt,  177  U.  S.  230,  said: 

"It  is  no  longer  open  to  contention  that  the  due  process  clause  of 
the  fourteenth  amendment  to  the  constitution  of  the  United  States 
does  not  control  mere  forms  of  procedure  in  state  courts  or  regulate 
practice  therein.  All  its  requirements  are  complied  with  provided,  in 
such  proceedings  which  are  claimed  not  to  have  been  due  process  of 
law,  the  person  condemned  has  had  sufficient  notice  and  adequate 
opportunity  has  been  afforded  him  to  defend." 

And  again  in  loiva  Central  R.  R.  Co.  vs.  loioa,  160  U.  S.  393: 
"But  it  is  clear  that  the  fourteenth  amendment  in  no  way  under- 
takes to  control  the  power  of  a  state  to  determine  by  what  process 
legal  rights  may  be  asserted  or  legal  obligations  be  enforced,  provided 
the  method  of  procedure  adopted  for  these  purposes  gives  reasonable 
notice  and  affords  fair  opportunity  to  be  heard  before  the  issues  are 
decided.  *  *  *  It  is  also  equally  evident,  provided  the  form  sanc- 
tioned by  the  state  law  gives  notice  and  affords  an  opportunity  to  be 
heard,  that  the  mere  question  of  whether  it  was  by  a  motion  or  ordinary 
action  in  no  way  renders  the  proceedings  not  due  process  of  law." 

The  Supreme  Court  of  Washington  in  State  ex  rel.  Oregon,  etc.,  Co. 
vs.  Railroad  Covimission,  52  Wash.  17,  said: 

"But  it  occurs  to  us  that  it  makes  no  difference  whether  it  is  a 
proceeding  under  the  forms  and  with  the  machinery  provided  by  the 
wisdom  of  successive  ages,  or  whether  it  is  under  the  forms  and  pro- 
ceedings provided  by  this  age.     Law  is  a  progressive  science,  and  must 


43 

necessarily  regard  the  changing  conditions  of  society  and  of  the  busi- 
ness of  the  country,  and  the  legislature  and  courts  of  today  ought  cer- 
tainly to  be  as  well  qualified  to  provide  machinery  for  the  guidance 
of  the  commission  as  was  the  law-making  power  two  hundred  years 
ago." 

2. — Liberty    of    Contract. 

The  amendment  protects  the  liberty  of  contract  against  invasion 
by  the  state,  but  it  is  thoroughly  established  that  the  liberty  of  con- 
tract is  not  protected  by  the  amendment  against  the  rightful  exercise 
of  the  police  power  of  the  state. 

The  principle  has  been  variously  expressed,  for  instance: 

"The  fourteenth  amendment,  however,  does  not  guarantee  the  citizen 
the  right  to  make  within  his  state,  either  directly  or  indirectly  a  con- 
tract, the  making  whereof  is  constitutionally  forbidden  by  the  state." 

Hooper  vs.  People,  155  U.  S.  648. 

"When  it  is  said  that  the  liberty  of  the  citizen  includes  freedom  to 
use  his  faculties  in  all  lawful  ways  and  to  earn  his  living  by  any  law- 
ful calling,  the  inquiry  remains  whether  the  particular  calling  or  the 
particular  way,  brought  in  question  in  a  given  case,  is  lawful;  that  is, 
consistent  with  such  rules  of  action  as  have  been  rightfully  prescribed 
by  the  state." 

Booth  vs.  Illinois,  184  U.  S.  425. 

"But  neither  the  amendment,  broad  and  comprehensive  as  it  is,  nor 
any  other  amendment  was  designed  to  interfere  with  the  power  of  the 
state,  sometimes  termed  its  police  power,  to  prescribe  regulations  to 
promote  the  health,  peace,  morals,  education  and  good  order  of  the 
people,  and  to  legislate  so  as  to  increase  the  industries  of  the  state, 
develop  its  resources,  and  add  to  its  wealth  and  prosperity."        , 

Barbier  vs.  Connolly.  113  U.  S.  31. 

"It  is  within  the  undoubted  power  of  government  to  restrain  some 
individuals  from  all  contracts,  as  well  as  all  individuals  from  some 
contracts." 

FrisUe  vs.  U.  8.  157  V-  S.  160. 

"This  right  of  contract,  however,   is  subject  to  certain  limitations 
which  the  state  may  lawfully  impose  in  the  exercise  of  its  police  power." 
Holden  vs.  Hardy,  169  U.  S.  366. 

The  liberty  of  contract  is  "subject  to  the  restraints  demanded  by  the 
safety  and  welfare  of  the  state." 
Ry.  Co.  vs.  Paul,  173  U.  S.  404. 

"It  may  be  conceded  without  discussion  that  a  citizen's  right  to  con- 
tract his  or  her  labor  is  a  valuable  property  right,  which  cannot  be 
restricted  by  the  legislature  unless  such  restriction  is  necessary  in  the 
proper  exercise  of  the  police  power  of  the  state.  *  *  *  in  the  early 
history  of  the  law,  when  employments  were  few  and  simple,  the  relative 
conditions  of  the  citizens  and  the  state  were  different,  and  many  em- 
ployments and  uses  which  were  then  considered  inalienable  rights  have 
since,  from  the  very  necessity  of  changed  conditions,  been  subjected  to 
legislative  control,  restriction  and  restraint.  This  all  flows  from  the 
old  announcement  made  by  Blackstone  that  when  man  enters  into 
society,  as  a  compensation  for  the  protection  which  society  gives  to 
him,  iie  must  yield  up  some  of  his  natural  rights,  and,  as  the  respon- 
sibilities of  the  government  increase,  and  a  greater  degree  of  protection 
is  afforded  to  the  citizen,  the  recompense  is  the  yielding  of  more  in- 
dividual rights." 

State  vs.  Buchanan.  29  Wash.  602. 


44 

In  many  of  the  decisions  of  the  Supreme  Court  of  the  United  States 
hereinbefore  cited  it  is  expressly  held  that  for  a  state  to  deal  by 
legislation  with  one  or  the  other  of  the  doctrines  of  the  common  law 
in  the  premises  is  not  violative  of  the  fourteenth  amendment.  In  the 
very  recent  case  of  Railroad  Company  vs.  Melton.  218  U.  S.  36,  the 
court  having  before  it  the  question  of  the  validity  of  the  Indiana 
statute  abolishing  the  fellow  servant  doctrine  as  to  railroad  employes, 
said:  "That  the  fourteenth  amendment  was  not  intended  to  and  does 
not  strip  the  states  of  the  power  to  exert  their  lawful  police  authority 
is  settled  and  requires  no  reference  to  authorities."  The  fourteenth 
amendment  is  a  limitation  upon  the  power  of  the  states.  The  fifth 
amendment  contains  a  limitation  in  like  words  upon  the  power  of 
Congress.  The  Supreme  Court  of  the  United  States  has  twice  ruled 
that  legislation  by  Congress,  modifying  the  fellow  servant,  assumed 
risk  and  contributory  negligence  doctrines,  in  cases  of  interstate  car- 
riers, is  valid. 

Hoivard  vs.  III.  Ry.  Co..  207  U.  S.  490; 

El  Paso  etc.  Ry.  Co.  vs.  Gutierrez,  215  U.  S.  87. 

Therefore,  if  the  conclusion  announced  in  the  fore  part  of  this 
report  is  sound,  that  the  proposed  act  is  within  the  police  power  of 
the  state,  it  must  follow  that  it  does  not  contravene  the  amendment  as 
to  the  liberty  of  contract. 

3. — Deprivatiox  of  Propkkty. 
A  workman's  cause  or  right  of  action  for  injury  caused  to  him 
by  the  negligence  of  his  employer  is  property,  and  within  the  prohibi- 
tion of  the  amendment.  State  legislation  taking  away  from  him  such 
cause  or  right  of  action,  after  it  had  accrued  to  him,  would,  it  may  be 
assumed,  be  in  violation  of  the  amendment,  though  it  has  been  held 
that  a  cause  of  action  for  tort  may  be  destroyed  by  legislation  after  it 
has  become  vested,  but  has  not  ripened  into  judgment.  Eastman  vs. 
Clackamas.  32  Fed.  24;  Bennett  vs.  Hargus,  1  Neb.  419.  But,  as  has 
already  been  pointed  out,  it  is  the  accrued  cause  of  action  which  is 
property  within  the  meaning  of  the  amendment,  not  the  rule  of  law 
creating  a  cause  of  action  in  instances  to  arise  in  the  future.  This 
conclusion  is  fully  sustained  by  the  decisions  hereinbefore  cited, 
notably  that  of  the  Supreme  Court  of  the  United  States  in  Martin  vs. 
Ry.  Co..  203  U.  S.  284,  sustaining  the  Pennsylvania  statute  abolishing 
the  doctrine  of  respondent  superior  as  to  future  events,  the  decision  of 
the  Supreme  Court  of  Pennsylvania  sustaining  the  same  statute,  the 
quotation  hereinbefore  set  forth  from  which  and  from  the  case  of 
Munn  vs.  Illinois.  94  U.  S.  113,  from  the  text  of  Judge  Cooley,  and  from 
the  Texas  case  of  Sawyer  vs.  Ry.  Co..  108  S.  W.  718,  seem  to  be  de- 
cisive. To  these  may  be  added  the  decision  of  the  Supreme  Court  of 
the  United  States  in  Ry.  Co.  vs.  Sowers.  213  U.  S.  55,  sustaining  a 
New  Mexico  statute  like  that  of  Texas,  in  which  the  majority  of  the 
court  announce  the  doctrine  that  it  is  within  the  legislative  ])Ower 
conferred  by  Congress  upon  the  territories  "to  all  rightful  subjects 
Of  legislation"  to  legislate  concerning  the  subject  of  personal  injuries 


45 

and  to  pass  laws  respecting  rights  of  action  of  that  character,  and 
Justices  Holmes  and  McKenna  dissenting  from  the  result  that  "the 
territory  could  have  abolished  the  rights  of  action  altogether  if  it  had 
seen  fit";  and  the  case  of  Bennett  vs.  Hargus,  1  Neb.  419,  holding 
"It  is  sufficient  to  say  that  no  respectable  authority  will  be  found  to 
the  effect  that  a  mere  right  to  sue  for  a  tort  is,  previous  to  the  com- 
mencement of  a  suit,  a  vested  right  which  the  legislature  cannot  dis- 
turb." 

4. — Equal  Protection  of  the  Law. 

The  provision  of  the  amendment  relating  to  the  equal  protection  of 
the  law  is  not  violated  by  a  division  of  the  subjects  of  legislation  into 
classes,  making  one  rule  or  law  for  one  class  and  another  rule  or  law 
for  another  class,  or  making  a  rule  or  law  for  one  class  and  none  for 
another  or  other  classes.  Such  class  legislation  is  lawful  and  permis- 
sible imless  the  classification  is  arbitrary  or  unreasonable.  If  the  court 
is  able  to  perceive  any  reasonable  ground  for  any  such  classification,  the 
validity  of  the  enactment  will  be  sustained.  The  proposed  act  would 
legislate  only  for  the  class  of  work  or  occupation  which  is  especially 
dangerous  to  life  and  limb,  and  is  therefore  not  obnoxious  to  the  con- 
stitution. 

A  considerable  number  of  the  states  have  passed  laws  confined  in 
their  operation  to  railroads,  and  creating  a  different  rule  of  respon- 
sibility for  accidents  as  between  them  and  their  workmen  than  is  im- 
posed in  less  hazardous  occupations.  Such  statutes  have  been  univer- 
sally sustained. 

Said  the  Supreme  Court  of  the  United  States,  in  Missouri  Pacific  Ry. 

Co.  vs.  Mackey.  127  U.  S.  205: 

"But  the  hazardous  character  of  the  business  of  operating  a  railway 
■would  seem  to  call  for  special  legislation  with  respect  to  railroad  cor- 
porations, having  for  its  object  the  protection  of  their  employes,  as  well 
as  the  safety  of  the  public.  The  business  of  other  corporations  is  not 
subject  to  similar  danger  to  their  employes,  and  no  objection  therefore 
can  be  made  to  the  legislation  on  the  ground  of  its  making  an  unjust 
discrimination.  It  meets  a  particular  necessity  and  all  railroad  corpora- 
tions are,  without  distinction,  made  subject  to  the  same  liabilities." 

To  the  same  effect  are  the  following  cases: 

Minneapolis  etc.  Ry.  Co.  vs.  Herrick.  127  U.  S.  210; 

Railway  Co.  vs.  Pontius,  157  U.  S.  209; 

Callahan  vs.  Ry.  Co.,  170  Mo.  473;  afl^rmed  in  175  U.  S.  348; 

Ditherner  vs.  Ry.  Co.,  47  Wis.  138; 

Hancock  vs.  Ry.  Co.,  124  N.  C.  222; 

Thompson  vs.  Banking  Co..  54  Ga.  509; 

Railway  Co.  vs.  Ivey,  73  Ga.  449; 

Lavalle  vs.  Ry.  Co.,  40  Minn.  249; 

Deppe  vs.  Ry.  Co.,  36  la.  52; 

Railway  Co.  vs.  Montgomery,  152  Ind.  1; 

Railway  Co.  vs.  Lassiter   (Fla.),  50  So.  428; 

State  statutes  imposing  liability  upon  mine  operators  for  negligence 
of  certain  employes  have  been  sustained: 

Wilmington  etc.  Mining  Co.  vs.  Fulton,  205  U.  S.  60; 
Coal  Co.  vs.  Illinois,  185  U.  S.  203. 


46 

In  Tullis  vs.  Railway  Co.,  175  U.  S.  348,  the  same  ruling  was  made 
upon  an  Indiana  statute  making  every  railroad  and  other  corporation 
liable  to  employes  for  negligence  of  the  corporation  or  its  employes 
for  defective  condition  of  its  ways,  works,  plant,  etc. 

The  New  York  statute  of  1910  covers  a  number  of  hazardous  occupa- 
tions; for  instance,  bridge  work,  elevators,  hoisting  apparatus,  scaffold 
work,  tunnels,  compressed  air  work,  work  with  electric  currents,  with 
explosives,  and  steam  railroads.  In  the  Ives  case  the  court  said:  "The 
classification  of  dangerous  employments  for  the  purposes  of  the  act 
must  be  upheld." 

The  proposed  act  covers  all  employes  of  employers  embraced  within 
Its  terms;  that  is  to  say,  engaged  in  extra  hazai'dous  work.  Under  it 
the  bookkeeper,  for  instance,  in  a  sawmill  would  be  within  the  terms  of 
the  act.  The  Iowa  and  Minnesota  cases  cited  in  the  last  foregoing  list  of 
cases  so  construed  the  acts  as  to  confine  the  operation  of  them  to  rail- 
road employes  actually  engaged  in  the  movement  of  trains,  holding  that 
to  otherwise  construe  the  act,  and  thereby  bring  within  its  operation 
employes  of  railroads  who  were  not  exposed  to  the  extreme  hazard  of 
railroading,  would  be  to  discriminate  between  such  employes  of  railways 
and  employes  of  other  employers.  Even  stronger  is  the  recent  case  of 
Chicago,  M.  &  St.  P.  Ry.  Co.  vs.  Westby  (C.  C.  A.),  178  Fed.  619. 

So  it  might  be  urged  against  the  proposed  act,  that  it  would  dis- 
criminate between  bookkeepers  of  sawmills  and  bookkeepers  of  banks, 
for  instance.  The  weight  of  authority  appears  to  be  against  the  afore- 
said conclusions  of  the  Iowa  and  Minnesota  courts. 

Railway  Co.  vs.  Malton,  218  U.  S.  36; 
Ditberner  vs.  Ry.  Co.,  supra; 
Railway  Co.  vs.  Castle,  172  Fed.  841; 
Pierce  vs.  Vai7.  Diizen.  78  Fed.  693; 
Hancock  vs.  Ry.  Co..  supra; 
Thompson  vs.  Banking  Co..  snpra; 
Railroad  Co.  vs.  Ivey,  supi-a. 

The  act  of  Congress  of  1906  imposed  a  new  doctrine  of  liability  upon 
railroad  companies  in  favor  of  any  of  their  employes  for  all  damages 
which  may  result  from  the  negligence  of  any  of  its  officers,  agents  or 
employes,  and  the  act  was  sustained  by  the  Supreme  Court  in  El  Paso, 
etc.,  R.  R.  Co.  vs.  Guttierrez,  215  U.  S.  87.  The  act  of  Congress  of  1908 
employs  the  same  language.  In  the  Melton  case,  218  U.  S.  36,  the 
Supreme  Court  of  the  United  States  ruled  against  the  Iowa  and  Minne- 
sota cases  above  cited  in  a  case  involving  the  Indiana  statute  abolishing 
the  fellow  servant  doctrine  as  to  railroad  employes,  saying: 

"And  it  is  equally  settled  as  the  essential  result  of  the  elementary 
doctrine  that  the  equal  protection  of  the  law  clause  does  not  restrain 
the  normal  exercise  of  governmental  power,  but  only  abuse  in  the 
exertion  of  such  authority,  therefore  that  clause  is  not  offended  against 
simply  because,  as  the  result  of  the  exercise  of  the  power  to  classify, 
some  inequality  may  be  occasioned.  That  is  to  say,  as  the  power  to 
classily  is  not  taken  away  by  the  operation  of  the  equal  protection  of 
the  law  clause,  a  wide  scope  of  legislative  discretion  may  be  exerted  in 
classifying  without  conflicting  with  the  constitutional  prohibition." 


47 

The  Indiana  act  abolished  in  part  the  fellow  servant  doctrine  as  to 
all  railroad  employes  and  the  decision  is  rendered,  notwithstanding  a 
decision  of  the  Supreme  Court  of  Indiana  in  Traction  Co.  vs.  Kinney, 
171  Ind.  612,  following  the  rule  of  the  Iowa  and  Minnesota  cases.  How- 
ever, having  in  view  the  contrariety  of  decisions  and  remembering  that 
Melton,  the  injured  employe  in  the  Melton  case  above  referred  to,  was, 
when  injured,  engaged  in  the  construction  of  coal  bunkers  on  the  rail- 
road, whereas  the  proposed  act  may  cover  a  wider  range  of  employment 
than  was  involved  in  any  of  the  decided  cases,  it  is  provided  in  section 
30  of  the  act  that  if  any  workman  shall  be  adjudicated  to  be  outside  the 
lawful  scope  of  the  act  because  of  remoteness  of  his  work  from  the 
hazard  of  his  employer's  work,  such  adjudication  shall  not  impair  the 
validity  of  the  act  in  other  respects. 


8. — First   Aid   Fuxn. 

The  first  aid  fund  is  created  by  the  joint,  enforced,  contribution 
of  employers  and  employes.  It  is  designed  to  provide  for  the  rendition 
of  all  necessary  medical,  surgical  and  hospital  services  to  Injured  work- 
men, and  for  compensation  to  the  workman  of  a  stated  sum  for  the 
first  three  weeks  of  disability.  It  is  believed  that  it  will  take  care  of 
all  minor  injuries  not  permanent. 

If  the  conclusion  hereinbefore  stated,  that  it  is  within  the  legisla- 
tive power  to  compel  the  employer  to  contribute  to  the  accident  fund — 
the  fund  provides  for  cases  of  death  and  permanent  disability^it  fol- 
lows that  it  is  within  the  legislative  power  to  enforce  the  contribution 
of  the  employer's  half  to  the  first  aid  fund. 

No  decision  has  been  found  touching  the  question  of  the  legislative 
power  to  compel  employes  to  contribute  from  their  wages  to  such  a 
fund.  It  is  believed  to  rest  firmly  upon  the  same  principles  as  applied 
to  the  case  of  the  employer.  The  employe  is  engaged,  as  well  as  the 
employer,  in  conducting  works  hazardous  to  the  life  and  limb  of  all 
engaged  therein.  So  it  seems  lawful,  as  well  as  just,  for  the  legislature, 
while  placing  the  major  part  of  the  burden  upon  the  employer,  as  best 
able  to  bear  it,  to  place  a  small  portion  of  it  upon  the  employe.  The 
burden  is  all  upon  the  industry. 

In  1798  Congress  passed  an  act  providing  that  the  master  of  every 
coastwise  vessel  should  pay  to  the  collector  of  customs  twenty-five  cents 
per  month  for  each  seaman  employed,  to  be  paid  ultimately  into  the 
treasury  of  the  United  States,  and  constitute  a  fund  for  the  support  and 
maintenance  of  a  marine  hospital  for  the  care  of  disabled  seamen,  and 
authorizing  the  master  to  deduct  the  same  from  the  wages  of  the  sea- 
man. The  statute  was  afterwards  extended  to  certain  other  vessels  and 
the  sum  increased  to  forty  cents.  The  act  remained  in  force  for  ninety- 
six  years  and  its  validity  was  never  questioned.     It  has  been  enforced 


48 

by  the  government  for  that  period  of  time  and  its  validity  impliedly 
recognized  in  several  decisions  of  the  courts: 

Buckley  vs.  Broion,  Fed.  case  No.  2092; 

Reed  vs.  Can  field.  Fed.  case  No.  11641; 

Peterson  vs.  The  Chandos,  4  Fed.  Rep.  G45; 

Holt  vs.  Cuvimings.  102  Pa.  St.  212; 

3  Op.  of  Atty.  Gen.  683; 

13  Op.  of  Atty.  Gen.  330. 

If  this  feature  of  the  proposed  act,  or  any  other  feature  (except  the 
two  main  provisions;  that  is,  the  creation  and  application  of  the  acci- 
dent fund  and  the  abolition  of  negligence  litigation)  should  be  found 
invalid,  they  are  separable  and  the  act  would  stand,  for  it  is  so  pro- 
vided in  section  30. 

9. — The  Sphut  of  the  Constitutio;. 

It  may  be  argued  that  the  proposed  act  would  be  invalid  as  violative 
of  the  spirit  of  the  constitution.  The  line  of  such  attack  would  probably 
be  on  the  theory  that  the  state  under  the  act  would  be  engaging  in  the 
business  of  accident  pr  employers'  liability  insurance,  whereas  it  has 
been  held  in  Rippe  vs.  Becker,  56  Minn.  100,  that  the  police  power  is  to 
restrain  a  business  or  occupation  in  private  hands,  not  a  power  of  the 
state  to  itself  engage  in  such  business  or  occupation.  See  criticism  of 
this  decision  by  Tideman  in  his  work  on  the  police  power,  page  608,  and 
by  the  Supreme  Court  of  Wisconsin  in  State  vs.  Froelech.  115  Wis.  32. 
If  such  contention  is  not  fully  answered  in  the  reasoning  in  the 
slaughter  house  cases,  16  Wall.  (U.  S.)  36,  and  by  the  state  dispensary 
cases;  State  vs.  Porterfield,  47  So.  Car.  75;  State  vs.  Aiken.  42  So.  Car. 
222;  Farmville  vs.  Walker.  101  Va.  323;  Oarsed  vs.  Greensboro,  126  No. 
Car.  159;  Bennett  vs.  Swain,  125  No.  Car.  468;  Sheppard  vs.  Bowling, 
127  Ala.  1;  Butler  vs.  Merritt,  113  Ga.  238;  Plumb  vs.  Christie,  103  Ga. 
686,  it  ought  to  be  a  sufficient  answer  that  in  the  proposed  act  the  state 
is  not  engaging  in  a  business,  but  only  creating  and  through  state 
officers  disbursing  funds,  to  which  funds  the  state  contributes  nothing, 
in  the  administration  of  the  police  power  by  the  means  deemed  by  the 
legislature  most  effective.  There  is  no  possibility  of  a  revenue  or  profit 
to  the  state  and  the  state  is  not  insuring  anybody  or  anything. 

It  should  be  borne  in  mind  that  the  conclusions  stated  are  not  based 
upon  any  precedent  bearing  directly  on  the  subject  matter  of  the  pro- 
posed act,  but  upon  the  theory  that,  reasoning  by  analogy  from  prece- 
dents nearest  in  ])oint,  the  courts  would  sustain  such  an  enactment 
made  by  the  legislature  of  the  State  of  Washington. 

Seattle,  Washington,  December  30,  1910. 

Respectfully  submitted, 

HAROLD  PRESTON. 


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